The preceding descriptions of the main elements in the debate (sovereignty, intervention, and prevention), along with the brief history of post-1945 interventions, provide the building blocks to explore four overarching analytical areas: rights and responsibilities, legitimacy and authority, conduct and capacity, and domestic and international will. These are the topics for the third section of this part of the volume.
The existing literature devoted to these areas is vast. The main questions examined below - when is intervention justified, how is it authorized, how should it be conducted, and how can sufficient political will be mobilized - have all been extensively analyzed by scholars, policy analysts, and practitioners. The four essays here attempt to summarize the ongoing debate about these questions. The full breadth of contemporary discussion is set out, and the relative degree of support for the various positions is assessed.
These analyses also seek to add an additional perspective - how intervention affects, and is seen by, populations at risk. What are the rights to assistance and protection of affected local populations? Is an intervention legitimate or illegitimate, whether or not it is legal? Has the international response caused more good than harm? Have the views of affected local populations been actively sought and genuinely considered?
This section begins with ethical dimensions of the intervention debate. Essay 6, Rights and Responsibilities, opens with a discussion of the possible impact on world order of competing positions about intervention. Some argue that promoting justice beyond borders undermines international order and increases the likelihood of interstate war, while others maintain that humanitarian interventions can be undertaken under extreme circumstances without endangering international order. The essay then reviews the ethical traditions on the legitimate use of force - principally just war doctrine - and assesses how they apply to moral decision making about humanitarian intervention. The third part of the essay, covering the rights guaranteed to affected populations, suggests that while the range of rights is broad and detailed, there is as yet no right to protection from outside. This essay concludes with a discussion of the value of shifting from an emphasis on rights to responsibilities, which focuses attention on concrete measures that states might take to operationalize a meaningful right to protection for affected populations.
Essay 7, Legitimacy and Authority, focuses on the legal aspects of humanitarian intervention, beginning with the law relating to the UN Charter regime on the use of force. Despite opposing views, the bulk of scholarly and diplomatic opinion argues that only the Security Council can authorize intervention in the post-Cold War world. There follows an overview of the current status of customary international law. Few legal analysts argue that a customary norm of humanitarian intervention exists. At the same time, even the most conservative commentators do not completely dismiss the notion that this norm may be emerging. The final section explores the links between legality and legitimacy: it probes the declining legitimacy of the Security Council as the UN's supreme decision making body; and it identifies measures that could strengthen the legitimacy of interventions undertaken without Security Council authorization.
Essay 8, Conduct and Capacity, turns from questions of when and where interventions should be authorized to how they should be undertaken. Four conceptually distinct modes of international military operations are identified: peacekeeping, peace enforcement, coercive protection, and warfighting. Specific attention is given to the operational challenges of actually undertaking and sustaining the enforcement of peace and the provision of protection. While compelling peace is a formidable challenge that may not find sufficient international support when decade-long commitments seem untenable, one option may be to further develop the capacity to use military force to provide protection for populations at risk.
The fourth essay examines domestic and international will. Most accounts blame a lack of will for the failure of effective intervention in cases where it was deemed both necessary and legitimate. Yet relatively little analytical effort has been devoted to unpacking the dimensions of will - it is what social scientists call a "black box." If the so-called international community is responsible, too often no one actually is accountable. The question of will, either domestic or international, comes down to choices and decisions made by individuals and institutions. The discussion starts with the domestic dimensions of intervention, focusing on the importance of such factors as geographic proximity, cultural affinities, political culture, perceptions of national interests, and domestic decision making processes. The international components of political will follow, with particular attention given to multilateral leadership and the complex challenges of constructing and maintaining multinational coalitions.
A discussion of rights and responsibilities related to humanitarian intervention - global or national, individual, or collective - raises the most basic issues of moral philosophy. Thus, any expectation of a definitive statement about the normative dimensions of applying deadly force is likely to be frustrated. As one contemporary philosopher of war and peace notes, it is naive to think "that there is a solution to every moral problem with which the world can face us."1
Yet to avoid a discussion of responsibility for this reason would be irresponsible. The issues of humanitarian action are too urgent and the dilemmas of inaction too acute to wait for a magical moment of global philosophical consensus. We continually make and justify decisions that have inescapable moral implications, and the question of responsibility is intrinsic to this process. Having himself fled from tyranny, the philosopher Isaiah Berlin's views on this point are a good point of departure. In his last essay, he wrote:
| The whole of our common morality, in which we speak of obligation and duty, right and wrong, moral praise and blame - the way in which people are praised or condemned, rewarded or punished, for behaving in a way in which they were not forced to behave, when they could have behaved otherwise - this network of beliefs and practices on which all current morality seems to me to depend, presupposes the notion of responsibility, and responsibility entails the ability to choose between black and white, right and wrong, pleasure and duty; as well as, in a wider sense, between forms of life, forms of government, and the whole constellation of moral values in terms of which most people, however much they may or may not be aware of it, do in fact live.2 |
Choice and responsibility lie at the heart of human action. We begin with the premise that there are genuine choices about whether, when, and how to act in the face of particular circumstances. The notion of responsibility itself entails fundamental moral reasoning and challenges determinist theories of human behaviour and international relations theory. The behaviour of states is not predetermined by systemic or structural factors, and moral considerations are not merely after-the-fact justifications or simply irrelevant. Taking such a position about the role of responsibility also challenges postmodern views that deny the possibility of engaging in intelligible moral reasoning across cultures and across time.
International responses to humanitarian crises in the 1990s indicate that we do have choices, that they reflect a hierarchy of values, and that even without a universally accepted code of morality we can engage in a dialogue on the morality of intervention. Fundamentally, an ethical judgement is one that can plausibly take "a universal point of view" and presumes that "the notion of morals implies some sentiment common to all mankind, which recommends the same object to general approbation."3 Even without agreement on the foundations of morality or on the universality of its content, those who make ethical judgements should be able to adopt this minimalist universal point of view.
Evidence of variations across the planet are obvious to anthropologist and casual tourist alike. The issue is not the existence of variations but their ethical implications. For relativism makes a leap from the description of differences to the normative assertion that "right" means "right for a given society" and that therefore "it is wrong for people in one society to condemn, interfere with, etc., the values of another society."4 In this view, what is right for one society or culture may not be right for another; the moral claims of various societies or cultures hold equal validity.
The lengthy debates about the merits and demerits of various forms of relativist thought should not detain us here.5 "If value relativism were to be accepted, in extremis, then no tyrant - Adolf Hitler, Josef Stalin, Idi Amin, Pol Pot - could be criticized by outsiders," as Ramesh Thakur reminds us. "Relativism is often the first refuge of repressive governments."6 There exists a broad international consensus around the kinds of behaviour - prohibitions on genocide, crimes against humanity, and "ethnic cleansing" - that might lead to intervention. There is no society or culture anywhere that outwardly condones murder, let alone mass murder, or wanton violence against civilians. This lowest common denominator - or, perhaps, the highest common dimension of international consensus - prohibits the "arbitrary, unexpected, unnecessary, and unlicensed acts of force and habitual and pervasive acts of cruelty and torture performed by military, paramilitary, and police agents in any regime."7 This claim to universality is compelling because its demands are so basic.
Different societies can establish different priorities of values and standards of happiness, but these differences do not render their understandings of an underlying moral code inherently, and forever, incompatible. What matters most, to return to Rwanda in April 1994 or Cambodia two decades earlier, is the development of international responsibility to protect civilians against mass atrocities.
Several other important ethical traditions are worth describing briefly, because they permeate the intervention debate and lead to starkly different conclusions. One debate in this field centres on the source of ethical value, for which there are two broadly competing interpretations: communitarian and cosmopolitan. Communitarians find the source of value in bounded political communities, most often states. From this approach, the right of specific communities to chart their own course on all matters, including the rights afforded individuals, is predominant. Obligations or duties are also limited to fellow citizens within a state. As such, communitarians tend to oppose external intervention in whatever form. In contrast, cosmopolitans identify the source of ethical value in human beings regardless of their geographic location or citizenship. According to this approach, the relevant political community spans the globe, as does the sense of moral obligation. States mainly serve an instrumental function of ensuring the provision of rights to their populations. Where they fail, outside actors have a responsibility to intervene.
Another important distinction among ethical traditions is the standard by which ethical action should be measured. Here, again there are two distinct schools of thought: deontology and consequentialism. Deontology is the notion that morally appropriate behaviour is based on adherence to moral laws or duties; actions are judged against preexisting standards. For deontologists, the good is in the act itself, and intentions matter. This approach underpins most rights-based approaches to ethics, and it highlights the moral imperative to act in defence of human rights in individual cases. Consequentalist theories, in contrast, suggest that right and wrong are determined not by what was intended but by what actually happens. Utilitarianism - commonly understood as the desire to produce the greatest good for the greatest number - is perhaps the most widely recognized form of consequentalist thought. The good lies not in the act itself but in securing desirable outcomes. Most positions in the debate on humanitarian intervention contain a heavy dose of consequentialist logic - they seek to secure the most desirable long-term outcome. However, the recurring call to "do something," as well as calls for consistency in interventions irrespective of the consequences, draw more on deontological approaches.
The analysis begins with a review of competing ethical approaches to world order - some favouring the stability associated with the norm of nonintervention, others favouring the pursuit of justice through the promotion of human rights. The second part of the essay reviews the various ethical bases developed to justify the use of force, including the just war tradition and more recent efforts to develop criteria for humanitarian intervention. The third part reverses the usual analytical lens, focusing not on outside interveners, but rather on the populations at risk and the rights afforded to them by international human rights law, international humanitarian law (IHL), and refugee law. The analysis concludes by exploring the implications of taking seriously international commitments to assist and protect those severely affected by deadly conflicts through the prism of "responsibilities."
An honest account of the responsibility to protect civilians from the ravages of deadly conflicts should acknowledge competing ethical approaches to world order. For some, overall peace and security are best ensured through unwavering adherence to the principles of state sovereignty and nonintervention. They argue that attempts to promote justice beyond borders undermine interstate order and increase the likelihood of interstate war.
Alternatively, there are those who argue that sustainable peace and security cannot exist in a world where genocidal regimes are allowed to pursue their strategies with impunity. On the basis of humane values and hard-headed Realpolitik, these observers argue that humanitarian interventions can be undertaken in extreme circumstances without fundamentally undermining the existing interstate order. Supporters of intervention in principle, however, are divided on the legitimacy of state power. Some are deeply sceptical about the motivations of great powers that possess the capacity to undertake intervention. Others respond that motivations are secondary, and the real question is whether there are humanitarian benefits, even where motives are mixed.
Each of these approaches seeks to protect individuals from harm, but they make very different assumptions about the nature of world politics and the role of the state. These differing assumptions lead to starkly diverging conclusions about the efficacy of using military force to protect human beings.
The importance of defending the principles of state sovereignty and nonintervention are the mainstay of legal theory and diplomatic practice. But they also form the basis for an ethically based approach to the study of world politics. Strands of this thinking can be found in various writers of the realist tradition, but they are most closely associated with the so-called English School pioneered by Martin Wight and Hedley Bull. This perspective understands international order to rest on what Bull termed an "anarchical society." The basic idea is that the absence of a world government does not condemn states to coexist in a Hobbesian world, where brute power is the only ordering principle. Instead, states form a society by recognizing certain common interests, rules, and institutions.8 In this international society, states agree on the need for order, despite having diverse conceptions of justice. The philosophy is "live and let live." Restraint and nonactivism are the norms behind what otherwise is a laissez-faire international system. The cardinal norm that furnishes order is the reciprocal recognition of sovereignty and its logical corollary, the rule of nonintervention.
The moral justification for this pluralist ethic of coexistence is that each state upholds multiple conceptions of the good. There is no point in having rules to regulate interstate relations if states are not morally valuable in themselves. Central to the argument is the belief that the rules and norms of international society are valued because they provide for the security of individuals. But what if states threaten rather than protect civilians? What happens when the norm of nonintervention protects a state that commits appalling crimes within its own borders? Can the state be intervened against in the name of protecting human rights?
The answer that they offer is a resounding "no," if the agent of intervention is a single state or a groups of states that have authorized themselves to act - if, that is, it is a "unilateral" or unauthorized intervention, no matter how many states participate. If, on the other hand, the agent of intervention is the UN, they are prepared to accept the legitimacy of an intervention to the degree that it genuinely expresses the collective will of the society of states. This normative rejection of unilateral action is justified by arguing that humanitarian intervention poses a grave threat to order, given the lack of consensus on questions of justice. The argument is that in the absence of an international consensus on the conditions that should trigger military intervention to protect human rights, states will act on their own moral principles. Such a possibility would thereby weaken an international order built on the principles of sovereignty, nonintervention, and nonuse of force.
They also argue that the normative language of human rights as enshrined in international agreements and instruments does not constitute a strong enough consensus to ground a right or duty of intervention. Reflecting on state practice during the Cold War, Bull argued, in 1984, that this objection underpinned the reluctance of state leaders to raise humanitarian claims to defend the use of force:
| As regards the future of the right of so-called humanitarian intervention there is no present tendency for states to claim, or for the international community to recognize, any such right. The reluctance evident in the international community even to experiment with the conception of a right of humanitarian intervention reflects not only an unwillingness to jeopardize the rules of sovereignty and non-intervention by conceding such a right to individual states, but also the lack of any agreed doctrine as to what human rights are.9 |
This moral defence of the nonintervention rule is based on what philosophers call consequentialism. The well-being of all individuals is the ethical test, and they argue that it is better served by upholding a legal rule that prohibits humanitarian intervention in the absence of agreement over what principles should govern the operation of such a doctrine. Enabling individual states to decide when intervention is permissible issues a licence to the strong to impose their preferences and moral values on the weak.
This position is underpinned by a profound scepticism about the possibilities of realizing notions of universal justice. Bull writes that "the cosmopolitanist society which is implied and presupposed in our talk of human rights exists only as an ideal, and we court great dangers if we allow ourselves to proceed as if it were a political and social framework already in place."10 Particular states setting themselves up as judges of what constitute universal human rights threaten the ethics of coexistence. In relation to the claim by the North Atlantic Treaty Organization (NATO) in the Kosovo War that its use of force was a legitimate action taken on behalf of the community of responsible states, Bull would reply that we should always be suspicious of the particular interests and values lurking behind such universal pretensions.
A similar argument about the risks of intervention undermining the interstate order has been raised by a host of countries. For example, speaking in the Security Council debate on the legality and legitimacy of NATO's use of force against the Federal Republic of Yugoslavia (FRY), the representative for the Russian Federation stated that while his government did not defend the FRY's violations of IHL, "[a]ttempts to apply a different standard to international law and to disregard its basic norms and principles create a dangerous precedent that could cause acute destabilization and chaos on the regional and global level."11 Similarly, Chinese Foreign Minister Tang Jixuan stated in September 1999 that "[s]uch arguments as 'human rights taking precedence over sovereignty' and 'humanitarian intervention' seem to be in vogue these days. But respect for sovereignty and non-interference are the basic principles governing international relations and any deviation from them would lead to a gunboat diplomacy that would wreak havoc in the world."12
While commonly dismissed by critics as rationalizations for narrow national self-interests, those who challenge the norm of unilateral humanitarian intervention are not necessarily indifferent to the plight of war victims. Rather, they fear that even greater human suffering might result from an increased incidence of interstate war as a result of setting aside the norm of nonintervention. As Robert Jackson wrote in the wake of NATO's bombing of Kosovo:
| The debate on humanitarian intervention is not a debate between those who are concerned about human rights and those who are indifferent or callous about human suffering . States who are in a position to pursue and preserve international justice have a responsibility to do that when-ever and wherever possible. But they have a fundamental responsibility not to sacrifice or even jeopardize other fundamental values in the attempt the stability of international society, especially the unity of the great powers, is more important, indeed far more important, than minority rights and humanitarian protections.13 |
Certainly in situations like Kosovo, in which human rights imperatives and great-power relations clash, proponents of intervention argue that the former should be subordinated to the latter. The logical implication of this position is that there can be no basis for states acting to end human rights emergencies unless this has the assent of at least all the permanent members of the Security Council. But does this mean that states should never advance justice claims if there is any risk of disrupting interstate order? And does it not simply leave the victims of human rights abuses to their fate?
The diplomatic rhetoric and state practice of many countries represents the humanitarian intervention debate as if the choice were stark - sovereign rights or human rights. This is also the position taken by those who believe that the sovereign state is a fundamental barrier to the realization of human rights. Theorists like Richard Falk and Ken Booth argue that the rules and values of a sovereignty-based world order are morally bankrupt because they have failed to protect individuals and groups from torture, ethnic cleansing, and genocide.14 States may have signed international agreements to uphold human rights, but they are primarily responsible for gross and systematic violations.
These critics of the maintenance of a state-based international society ask whom this order serves. Is it protecting the victims of torture, ethnic cleansing, and genocide? Or the 40,000 children who die of preventable diseases daily? Or the millions of women subject to domestic violence and degrading treatment? From the perspective of the victims of world politics, the society of states is providing neither order nor justice. In a description that might well have been drafted in the foreign ministry of the most critical antiglobalization persuasion, Booth argues that international society "bears an uncomfortable resemblance to a global protection racket"15 run by the G-8 to protect its wealth and power. The normative practices of international society leave untouched the structural causes of the economic and social injustice rooted in a deregulated capitalist world system. As protection rackets go, it is by no means the worst imaginable, but it refutes the claim that the society of states can act as an effective guardian of human rights.
How, then, do these so-called "antistatists" deal with the challenge posed by genocide and mass murder? They look to global social movements to undermine the legitimacy of statist elites, and they promote the values of human rights, healthy and balanced economic development, and environmental protection. The global human rights regime grew from an interactive process among individuals, nongovernmental organizations, and states. As early as 1929, the Institut de droit international (Institute for International Law) spelled out minimum rights for every person in every state, declaring that its work was a response "to the conscience of the civilized world which demands the recognition of the rights of individuals, rights that are beyond the reach of the state."16 Three-quarters of a century later, the UN High Commissioner for Refugees (UNHCR), Mary Robinson, writes, "Universality is, in fact, the essence of all human rights; all people are entitled to them, all state and civil actors should defend them. The goal is nothing less than human rights for all."17
Belief in human rights may proceed on several different foundations, philosophical or religious. One can, but need not, be a foundationalist in ethical terms to believe in the idea of human rights. At their core, human rights are those rights that all individuals have by virtue of their very humanity.18 For some, this humanity is grounded in deontological theories of natural law, or neo-Kantian variants that emphasize the exercise of reason through the categorical imperative that we treat all humans as ends and not means.19 Starting from consequentialist moral reasoning, utilitarians also find the idea of human rights quite compatible with their general approach to ethics.20 Even avowed antifoundationalists argue that their position is compatible with the development of a global human rights culture.21
The compelling normative claim that all individuals have inalienable human rights has spread far and wide. In a speech at the UN just after the adoption of the Universal Declaration of Human Rights, in December 1948, Eleanor Roosevelt predicted that "a curious grapevine" would spread the ideas contained in the Declaration far and wide.22 This aspiration has proved prophetic, as the ideas embodied in the Declaration have become the weapons that the powerless have mobilized against the powerful in their quest to secure the most fundamental human rights.
Henry Shue defined basic rights as security from arbitrary violence and the provision of minimum subsistence rights. These rights are basic because they are "essential to the enjoyment of all other rights" and are "everyone's minimum reasonable demands upon the rest of humanity."23 The language of basic rights directs attention to the ongoing, "chronic" violations of human rights that go beyond the emergencies of genocide, mass murder, and ethnic cleansing to encompass the daily suffering of millions facing slow death through poverty and malnutrition. The Human Development Report 2000 argues that "assessments of human development, if combined with the human rights perspective, can indicate the duties of others in the society to enhance human development." The report sets out the links between human rights and human development in ways that speak to any attempt to define global interests. It reminds us that human rights violations may be "loud," as in Rwanda, or "silent," as in the cases of "about 790 million people not adequately nourished, 250 million children used as child labour, 1.2 million women and girls under 18 trafficked for prostitution each year 1.2 billion people income poor, about 1 billion adults illiterate, 1 billion without safe water and more than 2.4 billion without basic sanitation."24
In seeking to define global responsibilities, addressing these kinds of deprivations is as central as deploying military force to intervene in the midst of a bloody and lethal conflict. These observers would argue that we have the solemn responsibility, negatively, to avoid depriving others of these rights and, positively, to work to create the conditions in which it is possible for everyone to enjoy them. This means treating all people - and particularly those affected by deadly conflicts, whether they be refugees, internally displaced persons (IDPs), or the chronically malnourished and sick who remain behind in war zones - not merely as recipients of charity but as bearers of the same human rights as citizens of Mexico City, New York, or Moscow. Taking basic rights seriously means taking responsibility for their protection everywhere.
The impact of human rights in sweeping away communist governments in east-central Europe and the former Soviet Union is now obvious. Other momentous changes have also occurred since the end of the Cold War. They include the spread of democratic values to previously authoritarian governments, the growing acceptance of human rights norms by governments that had previously repudiated their legitimacy, and the growing emphasis on strengthening the UN's machinery for protecting the rights of civilians in armed conflicts. Critics of statist values and structures argue that protecting the victims of world politics depends on focusing on the deeply rooted structural causes of poverty, underdevelopment, and social exclusion that create the breeding ground for violent conflict. They may be right in asserting that one key to achieving a more peaceful world lies in addressing global economic and social inequalities. But the question here is how we should respond when reality fails to match theory. How should human rights be defended in cases where states are guilty of crimes against humanity or when the state has collapsed into interethnic violence?
Only in situations where vital national interests are believed to be at stake will state leaders incur the costs of intervention. Thus, the problem for many advocates of human rights is that killing, even on the scale of genocide, seems insufficient to move governments to risk their soldiers' lives. If governments do intervene with the claim of humanitarian purposes, antistatists look for the selfish interests lurking behind the action. Richard Falk considers that, in theory, the use of force "can be an emancipatory instrument, at least in certain extreme situations," but this requires governments "to commit significant numbers of lives and resources over a prolonged period, with the prospect of possibly heavy losses, and even then with no assurance of success." He argues that the challenge is to persuade and cajole governments into making a stronger moral commitment to humanitarian intervention. Without it, he concludes that "military action in an interventionary mode virtually always produces destructive and counterproductive results."25
Set against this critique of the state as a moral agent of intervention is the view that there are possibilities to civilize the state so that it enforces cosmopolitan values. This school of thought acknowledges that the society of states has failed to protect human rights, but it is more optimistic that state power can be harnessed for moral purposes. R.J. Vincent argued that international society has strengthened its own legitimacy by co-opting the doctrine of universal human rights. The claims of individual rights have forced themselves onto the agenda of international society, and states have accepted a relationship between internal and external legitimacy. However, in arguing that individuals have become legitimate subjects of international law, Vincent admits that their rights could only be truly enforced by states. This is especially evident for humanitarian intervention.
Having identified the protection of basic rights as the litmus test of the moral credentials of international society, Vincent argued that the duty to protect these rights "falls on us all as individuals, but that we may seek to discharge it most effectively through our governments."26 The state remains the bedrock of human rights protection, as well as of international order. This is not to say that transnational social forces are not playing an important role in standard-setting and monitoring. Yet, the post-Cold War period is like preceding eras in at least one way. There is little reason to invest much hope that global civil society can systematically ensure human security. When facing supreme humanitarian emergencies in northern Iraq or southern Sudan, aid agencies have at best a limited capacity to deliver food or medical supplies. In the case of Somalia, armed escorts were vital to the delivery of relief aid, and the chronic insecurity even led the International Committee of the Red Cross (ICRC) and other agencies to hire armed guards, so-called technicals. The limits of NGOs as agents of rescue was recognized by Médecins sans Frontières (MSF, Doctors Without Borders) during the Rwandan genocide. The organization had never before called for military intervention, believing that the use of violence was always escalatory and that states are notoriously self-serving. In making a call for intervention, MSF had lost none of its suspicion of states as agents of humanitarianism, but it felt compelled to do so to end the horrors in Rwanda.
Where then does this leave us? If seeing the state as a civilizing rather than corrupting force is to gain normative ground and policy salience, it is necessary to demonstrate that states are indeed capable of acting as agents of common humanity. Rather than accept the view that all states are legitimate, there is an alternative one - namely, that states should only qualify as legitimate if they meet certain basic standards of common humanity. What if a state's legal and moral right to nonintervention were dependent on ensuring basic rights for its citizens? Human beings live in national communities. The state collectively concentrates, represents, and speaks for their rights and concerns as citizens.
The implication is plain. If by its actions and, indeed, crimes, a state destroys the lives and rights of its citizens, it forfeits temporarily its moral claim to be treated as legitimate. Its sovereignty, as well as its right to nonintervention, is suspended. The Special Representative of the Secretary-General for Internally Displaced Persons, Francis M. Deng, has called this approach "sovereignty as responsibility."27 In brief, the three traditional characteristics of a state in the Westphalian system (territory, authority, and population) have been supplemented by a fourth, respect for human rights.
The state has, first and foremost, the responsibility to protect the rights of its citizens. But in those situations in which it is unwilling or unable to fulfill this responsibility - or is itself the perpetrator of abuse - there is then a residual responsibility for other states to take up the slack. They should protect the citizens of the irresponsible state, particularly when massive loss of life occurs or is imminent. UN Secretary-General Kofi Annan's speeches at the end of the 1990s can be viewed as reflecting important aspects of the sovereignty-as-responsibility doctrine: "The Charter protects the sovereignty of peoples. It was never meant as a license for governments to trample on human rights and human dignity. Sovereignty implies responsibility, not just power."28
The fundamental assumptions underlying this position are not only that intervention can be morally legitimate but also that protecting human rights can be justified on security grounds. The belief that democratic states have a long-term national interest in, as well as moral responsibility to promote, human rights was christened "good international citizenship" by Gareth Evans, as Australia's foreign minister in the late 1980s.29 It is this vision that underpins Canada's human-security agenda, with its conviction that there is a relationship between the provision of basic rights and wider international security.30 The challenge facing enlightened state leaders is to build an international consensus behind policies that address the underlying cause of human rights deprivations and that defend basic rights wherever and whenever they are threatened. For advocates of good international citizenship, the promotion of justice is the key to lasting order, even if they also "must convince others of their case, their competence, and their motives."31
In the long term, such a conception of ethical statecraft looks to the elimination of armed conflict. Even from an idealistic vantage point, however, a lengthy process of transition would exist. Cases can be expected to arise for which the use of force is believed to be the only means to end gross and systematic violations of basic rights. The use of violence poses an agonizing moral dilemma for the good international citizen. Michael Ignatieff captures it in the following manner: "How can you have a human rights doctrine that puts the right to life at the centre of that doctrine but simultaneously legitimizes violence to right human rights abuses either internally or externally?"32
A problem yet to be adequately addressed is how to ensure that intervention, where it occurs, is legitimate. Commentators like Jackson would argue that authorizing intervention should be the sole responsibility of the Security Council. It follows that opposition by one or more of the permanent members is sufficient to stop an intervention. However, this seems to fly in the face of the moral impulses behind the sovereignty-as-responsibility doctrine. Not only does it shield major powers from being subject to intervention, but it also leaves international decision making hostage entirely to the prerogatives of major powers whose own human rights records are suspect. Such an absolutist position would require states to refrain from acting in future cases of genocide, mass murder, war crimes, and ethnic cleansing.
To emphasize the moral consequences of too rigid an attachment to the nonintervention rule without Security Council imprimatur, the UN Secretary-General posed a haunting rhetorical question to the General Assembly in September 1999. Should a coalition of states willing to use force to end the Rwandan genocide have refrained from acting in the absence of express Council authorization? At the same time, he recognized the dangers to order of permitting powerful states to authorize themselves to act as enforcers of global humanitarian values. "To those for whom the Kosovo action heralded a new era when States and groups of States can take military action outside the established mechanisms for enforcing international law," Kofi Annan asked, rhetorically: "Is there not a danger of such interventions undermining the imperfect, yet resilient, security system created after the Second World War, and of setting dangerous precedents for future interventions without a clear criterion to decide who might invoke these precedents, and in what circumstances?"33
States are not ready to explicitly sanction an intervention for humanitarian purposes without Security Council authorization. But neither are they always willing to condemn it. There seems to be recognition that the fabric of world order can tolerate the occasional armed intervention justified on humanitarian grounds outside of the UN Charter. There is no enthusiasm for codifying a treaty on humanitarian intervention, because of the worry that this would lead to states' abusing it. Not incidentally, an additional problem for such a development is the fact that a legal right of this nature would generate obligations to act in situations where states might well prefer a policy of inaction.
The moral and legal responsibility falls on intervening states to explain why their action should be treated as a legitimate exception to the cardinal rules of nonintervention and nonuse of force. The plausibility of these justifications and the scale of the humanitarian disaster should be important factors in shaping the international response. At the same time, it would be naive to ignore power considerations in determining how far justice claims advanced by particular states are tolerated, excused, or even legitimated. The challenge facing the UN and states committed to protecting basic human rights is to devise strategies of anticipatory intervention that are legitimated by the society of states and the wider community of actors in the humanitarian arena.
Contemporary debates commonly invoke le droit d'ingérence, the so-called right to interfere. First popularized by MSF, and later on by other members of the French doctors' movement in the early 1970s, this doctrine privileges the provision of humanitarian assistance to victims of war, irrespective of the sovereign rights of states.34 In the first instance, it rejects the necessity of state consent for the provision of assistance by humanitarian agencies, but it has become associated with the legitimacy to intervene with deadly force to protect civilians. Questions of the legitimacy of the use of military force, however, are part of an older debate. Before exploring criteria for decision making about intervention when human catastrophes threaten, it is worth considering these older ethical traditions. Although the focus was largely on conflicts between states, recent commentators have highlighted the direct relevance of these traditions to questions of humanitarin intervention.
One ethical position is to adopt a pacifist stance and reject the application of deadly force in any form, on the basis of profound religious convictions. Conscientious objection to participation in the armed forces is one manifestation. Such groups as the Quakers and the Mennonites in the West and the Jains in the East reject out of hand the proposition that military force could or should be used to pursue humanitarian or any other objectives.
Other profoundly religious minds have struggled with the reality of the need to use force in the face of political oppression. For instance, liberation theology was developed by Catholic clergy in Latin American to justify an armed struggle against the ruling classes as part of a necessary effort to foster self-determination, redistribution of power and wealth, and liberation of the suffering masses.35
Although the discussion below focuses on the Western just war tradition, there is ample evidence that similar principles exist within other religious traditions as well. Ephraim Isaac, for instance, draws on theological and anthropological evidence that "humanitarianism" (or a visceral concern for, and benevolence toward, fellow human beings) "is a universal phenomenon manifested globally and throughout the ages."36 A number of scholars have pointed to a concept in Islamic theology comparable to just war doctrine,37 while others have illustrated that Islam was among the first civilizations to establish clear constraints against inhumane acts.38
The most thoroughly developed tradition of inquiry into the ethics of recourse to the use of lethal force is just war doctrine.39 Beginning in the early medieval period, it attempted to identify the circumstances under which a resort to the use of force is justified (jus ad bellum), as well as the means by which a war may be legitimately fought (jus in bello). The discussion below focuses on the former; the latter is discussed in more detail in the analysis of military conduct in the subsequent essay about conduct and capacity.
Within the just war tradition there is a broad range of views, with no single list of criteria being universally accepted. Nevertheless, it is possible to identify core elements.40 Thomas Aquinas set out three: right authority, just cause, and right intentions. Three additional elements subsequently developed: last resort, proportionality, and reasonable hope.
The notion of right authority is firmly rooted in the sovereignty of states. Prior to the general legal prohibition on the use of force in 1945, the just war tradition understood right authority to rest with the sovereign state, though over time the emphasis shifted from a sovereignty granted by a divine source to one of popular consent. The prohibition on the use of force in the UN Charter and the designation of the Security Council as the ultimate arbiter fundamentally transformed the sources of right authority.
The criterion of just cause was most commonly understood to refer to self-defence, though a number of other circumstances were considered: defending allies, reclaiming territory lost in previous wars, and punishing transgressors. In general, then, it was understood to depend on the degree of harm inflicted. A further, though less well-developed, just cause was the defence of the innocent.
Right intentions concern the motives that lie behind the recourse to the use of force. In earlier times, the principal legitimate motivation for the resort to war was the creation of a just peace. The more general point here is that the ethical status of the use of force depends on intentions, and ulterior motives undermine that status. The pursuit of narrowly defined national interests would not meet this minimum threshold. In many respects, however, it is easier to recognize unacceptable motives than acceptable ones.
The use of force should be a last resort, though there is no agreement as to whether the full range of alternatives should have been pursued first, or whether serious analysis of options would suffice to dismiss as unrealistic those short of force. There is certainly an inherent preference for nonviolence, though some writers within the tradition argue that options should be pursued only when they have a strong likelihood of success. Taking this conclusion a step further, others argue that last resort is not a temporal distinction at all, but refers only to the fact that the use of force is the least preferred option. According to this logic, "last" does not mean that it is "ultimate" but that serious reflection and evaluation of other options indicate no likelihood of bringing the desired outcomes.
The final two principles, proportionality and reasonable hope, are related. The first refers to the need for means to be commensurate with the ends, as well as being in line with the magnitude of the initial provocation. The second constitutes an assessment of whether there are good grounds for believing in advance that the desired outcome can be achieved. Together they make the case that a sound basis for intervention cannot be determined independently of measures proposed and anticipated results.
The just war tradition sets out an ethical basis for the use of force in circumstances beyond mere self-defence. Although it is seldom acknowledged, many of the ethical questions that need to be considered before using deadly force to protect civilians can be found within this tradition. Indeed, much of the contemporary debate seems to call for a carefully circumscribed approach to humanitarian intervention that in fact amounts to a modified just war doctrine.
The connections between just war thinking and overarching criteria for humanitarian intervention are clear. A series of attempts to establish criteria have not resulted in an agreed set, but there are common elements. Gareth Evans, during a session on humanitarian intervention organized by the International Peace Academy, succinctly summarized them as gravity, urgency, objectivity, acceptability, practicality, proportionality, and sustainability.41
Early efforts originated in a desire to identify the potential legal grounds on which an intervention could be justified, and this rationale continues to be prominent. Criteria have also been developed to act as a checklist for political leaders to encourage sound decision making, although even some supporters are hesitant in that too stringent criteria could also provide yet another unwanted and unnecessary brake on justified intervention. A further purpose for criteria particularly relevant to the subject matter here is to assess the morality - the ethical dimensions - of humanitarian intervention. Six criteria are worth enumerating.
Scale of the Crisis - Criteria for intervention on humanitarian grounds begin with the question of the scale or gravity of a crisis. There is considerable agreement about two circumstances under which intervention might be justified: when the government of a state is the perpetrator of mass atrocities; and when a government is fundamentally unable to maintain law and order (or halt the descent into anarchy).
There is a wider range of views on the necessary threshold in terms of "the scale of the breaches of human rights and international humanitarian law including the number of people affected and the nature of the violations."42 There is near universal agreement that the threshold for military intervention is very high. For all but the most serious of human rights violations, the use of force is morally indefensible. A number of authors suggest that genocide and crimes against humanity - both have agreed legal definitions - warrant intervention. Others argue that there are additional grounds, including mass forced displacement. All of these criteria usually entail the actual, or imminent, large scale loss of life.
Purposes of Intervention - Another common element in the debate about criteria relates to the motivations underlying humanitarian intervention. It is often argued that the overarching purpose should be to protect victimized populations. In many formulations, this criterion is extended to mean that the intervention should exclusively be "apolitical" or "disinterested." While this would create a relatively clear prohibition on the seizure of territory or the installation of a puppet regime under the guise of protecting innocent civilians, it also implies an unattainable purity of motives. A counterclaim is that there should be a predominantly humanitarian motive, while accepting that considerations of national interest will inevitably intrude. In fact, if risks and costs of intervention are high and interests are not involved, it is unlikely that states will enter the fray or stay the course. Those who advocate action to protect human rights must inevitably come to grips with the nature of political self-interest to achieve good ends.
Other commentators take a less stringent view of motives. The morality of interventions should be judged in terms of their outcomes. For example, Fernando Tesón argues that, "[t]he true test is whether the intervention has put an end to human rights deprivations. That is sufficient to meet the requirement of disinterestedness, even if there are other, non-humanitarian reasons behind the intervention."43 Nicholas J. Wheeler proposes a sliding scale of international legitimacy, whereby interventions that have significant humanitarian motives are praised, while those that lack any such credentials, but which produce a positive outcome, are excused.44
Suspicion and probing questions seem warranted where intervenors seem to be pursuing their own political or security objectives. Nonhumanitarian intentions could badly taint decisions about how to carry out an intervention and defeat humanitarian goals. A history of inconsistent interventions that primarily pursued political objectives would destroy the credibility of a system that claimed to intervene for humanitarian ends and could end up justifying the abuse of power. However, in assessing the moral and human rights legitimacy of interventions, we are primarily assessing the consequences of the action, not the moral worth of the actor (the intervening force). A one-off intervention not wholly motivated by humanitarian intentions could still be beneficial.45 Similarly, a series of consistent interventions by countries that have the best intentions in the world could be morally unjustifiable if, for instance, the intervening forces commit serious human rights violations or are so inept that suffering increases. The point is that a nonhumanitarian intention does not in itself make the intervention contrary to human rights principles. A further measure to address the underlying motivations for intervention has been the relatively rapid withdrawal of military forces once the humanitarian objectives of an intervention have been secured. A related indicator is that no attempt is made to subvert or to change a political regime in a target country. While a common element of earlier attempts to devise criteria, there is a growing recognition that the safety of vulnerable populations cannot necessarily be guaranteed through a short military campaign. Moreover, the evidence from the interventions by Tanzania and Vietnam in the 1970s that overthrew Idi Amin and Pol Pot, respectively, is that effective intervention may require a change of political regime.
In fact, the challenge for contemporary interventions is now more often discussed in terms of avoiding simplistic and myopic "exit strategies." In light of the increased use of protectorates, or temporary international administrations, oversight, and trusteeship - with overt political agendas and long-term timelines - a more generic interpretation of the purposes of intervention may be appropriate. That is, the meaning of "apolitical" would be that interveners do not gain selfish or short-term political or any other advantage, and the overriding agenda of both short- and long-term activities remains the safety and security of the affected local civilian populations.
Multilateral Action - In order to limit abuse and foster more disinterested calculations, many commentators have called for all humanitarian interventions to be multilateral. Echoing the earlier discussion, it is often argued that a Security Council imprimatur is a strict requirement. Others have gone further by arguing interventions should not be undertaken by hegemonic powers, whether global or regional. There is no doubt that multilateral interventions reduce the prospects for abuse, particularly if the range of involved countries is broad. But from an ethical standpoint, it does not follow that interventions by a single state are necessarily illegitimate. If a particular multilateral intervention is ethically sound, it is hard to see why it would not remain so if conducted by a single state. Similarly, hesitations about intervention by hegemonic powers are understandable and may be warranted. But they alone cannot discredit an otherwise justifiable intervention, especially as these are among the few countries with the power to project military force beyond their borders.
Last Resort - Those who develop lists of criteria for assessing the legitimacy of humanitarian intervention invariably include the notion of last resort. Recourse to the use of deadly force is permissible only when the doctrine of necessity has been satisfied - that is, force is the only remaining option. Other measures include fact-finding missions, mediation, statements of concern by intergovernmental bodies, condemnation, criminal prosecution of perpetrators, and measures limiting political, economic, and military relations, including embargoes and offers of peacekeeping.
The meaning of "last resort" can be understood to apply when "nothing short of the application of armed force would be sufficient to stop the human rights violations in question." Therefore, "except where delay would permit massive, irreparable harm, all measures short of armed force should be exploited before resort to such force."46 Few, however, suggest that this notion must be taken literally and interpreted in purely sequential terms. It is certainly not the case that all other available options must actually have been pursued and failed, but rather that other options will have been considered seriously.
There are clear links here with prevention. Armed intervention would be unnecessary in most cases if governments took early action before violations and armed conflicts escalated beyond control. In addition to addressing root causes of violence, the techniques developed by many UN and regional organizations over the last half century underscore the range of options short of military intervention that could be employed.
However, the failure of states to act early and avoid the need for military intervention cannot morally justify refusing to intervene when abuses have escalated to crimes against humanity. Failures in prevention expose the mistakes and weaknesses of the intervenors and should be used to press for early action elsewhere. But it is clearly not a response to the urgent moral question: What should be done when genocide is occurring?
The relationship between last resort and chronology is complicated. Certainly the crisis should be imminent, but is it necessary or even desirable to wait for massive casualties before intervention can be justified? Does the scale of atrocities have to become cataclysmic before international responses become thinkable? The weight of opinion seems to be changing, with a number of commentators noting that the early use of force may often, in fact, hold out greater prospects for success and entail less total suffering.
Proportionality - While questions about the nature and degree of force are normally reserved for discussions of conduct, they are relevant to ethical decision making about the recourse to deadly force as well. The use of force must be appropriate, not excessive. Furthermore, military intervention should only be undertaken when the prospects for success are strong - when the intervention is likely to do more good than harm.
The aim of stopping massive human rights violations might justify armed intervention, but it surely cannot justify any means. The minimum amount of force should be used to achieve a humanitarian objective. Force should be used only to achieve the goal of stopping the atrocities, not pursuing political or strategic objectives.
Impact - In both the short and long term, it is notoriously difficult to predict whether an intervention will do more harm than good. In moral terms, the intervention should do the least possible harm to those being protected, to bystanders such as any civilians who are not taking part in fighting, to the perpetrators, and to the intervening party itself. An intervening force has a duty to abide scrupulously by the rules of IHL. These principles include the prohibitions on direct or indiscriminate attacks on civilians and disproportionate strikes on military targets that unjustifiably harm civilians.
In addition, the application of this precautionary principle would also preclude military action against the major powers. It is difficult to imagine the resolution of any conflict or success in any humanitarian objective if military action were mounted against such powers. Thus, even though many commentators argue that Russian violations of humanitarian law in Chechnya have exceeded those in the former Yugoslavia, on purely utilitarian grounds there has been no serious consideration of intervention. The possible repercussions from a major war, including nuclear weapons, outweigh any conceivable humanitarian concerns. At the same time, if the use of force to halt egregious violations of human rights does not challenge a major power's core values and is considered important to preventing an escalation of violence and large scale loss of life, it is difficult to justify giving the permanent members a veto over such interventions.
Calculations about costs and benefits are often easier ex post facto than prior to the actual use of coercion. Imponderables inevitably intrude and make such calculations problematic. This reality - along with the uncertainties of waging war and subjective judgements about what constitutes acceptable and unacceptable damage - make proportionality and impact among the most subjective of possible criteria.
In an ICRC-sponsored public opinion poll, 66 percent of respondents in 12 war-torn countries said there should be more international intervention on behalf of threatened civilians, while 17 percent said there should be less, and only 10 percent said there should be no intervention.47 It may not be surprising that affected populations favour intervention, but such overwhelming support from the victims reminds us that this debate is about the life and death of real people.
Affected local populations have fundamental rights. If their violation might be grounds for intervention, then it is important to understand the nature and breadth of these rights. The underlying concern here is with the victims - threatened and actual - and the body of human rights and humanitarian principles created to protect them. The question then is, what fundamental rights are guaranteed to all human beings? What are the commitments made by states to protect people, especially against gross and systematic abuses? Can victims legitimately expect that if all else fails, states will intervene militarily to protect them against massive violations in their own country?
Protection of the right to life and physical integrity is found in three related but distinct bodies of international law: IHL, human rights law, and refugee law. IHL, or the laws of armed conflict, does not prohibit war but limits wanton cruelty in order to spare persons who are not or who are no longer engaged in armed conflict. Growing from an initial concern to provide for prisoners of war, it has grown to encompass broader concerns about methods of war and includes calls to both states and rebel groups to protect civilians, as codified in the four 1949 Geneva Conventions and the two Additional Protocols of 1977.48
The human rights concept of crimes against humanity and the concept of war crimes from IHL (as updated by the crimes included in the Statute of the International Criminal Court [ICC]) have certain prohibitions in common. In addition to outlawing arbitrary killing, they prohibit torture, unjustified medical experimentation, slavery, rape, and other sexual violence, such as enforced prostitution, forced pregnancy, and enforced sterilization. Both prohibit the forced displacement of populations, starvation as a deliberate tactic, or trying to destroy a population by preventing access to medicine or by destroying crops and livestock.
The laws of armed conflict contain some fundamental principles, including that civilians and others not taking part in hostilities (for example, wounded or captured soldiers) should never be the object of attack; only military objectives should be attacked. Indiscriminate attacks are prohibited, as are attacks that are disproportionate to any legitimate military objective and that therefore strike against civilians. Weapons that cause unnecessary suffering are prohibited, as is poison and methods of warfare that may cause widespread, long-term, and severe environmental damage. The 1997 landmine treaty prohibits the use, stockpiling, production, and transfer of antipersonnel mines.
Violations of most of these provisions amount to the worst breaches of humanitarian law, called war crimes. Article 8 of the ICC statute includes a long list of attacks on people or property committed in international or civil wars: willful killing, torture, unlawful deportation, taking of hostages, employing poison and asphyxiation, use of poisonous or other gases, sexual violence, intentional use of starvation, indiscriminate attacks on civilians. The laws of armed conflict are complex, and some of these prohibitions technically apply only in international wars that involve more than one state, not in civil wars.49 However, one fundamental guarantee applies to all armed conflicts, whether intranational or international. Article 3, which is common to all the Geneva Conventions, prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" of anyone not taking part in the hostilities, whether civilians or wounded or captured soldiers.
International human rights law tries to limit the unrestrained power of the state. Although much ink was spilled in the 1990s about weak states, historically excessive state power has been far more prominent as a source of human rights violations. The first article of the Universal Declaration of Human Rights states, "Everyone has the right to life, liberty and security of person." International law does not prohibit killing as such. What it does prohibit in broad terms is arbitrary killing (deprivation of life) and violence against the physical integrity of people.
Underlying all branches of international law is the principle of nondiscrimination between peoples. It is the only human right expressly mentioned in the UN Charter. Article 1 of the Charter includes "promoting and encouraging respect for human rights and for fundamental freedoms, for all without distinction as to race, sex, language or religion" - language that has been ratified by almost every country in the world. Nondiscrimination has perhaps the strongest claim to be a norm binding on all states. Discrimination against ethnic or other groups is often at the heart of violence that demands international coercion. Long-term discrimination in areas such as education or employment can trigger a spiraling cycle of bloodshed.
Genocide and ethnic cleansing are the most egregious expressions of discrimination, and the ones that entail large enough losses of life to constitute for many observers a trigger for humanitarian intervention. While ethnic cleansing is a relatively new concept, emerging most directly from the Balkan crises of the 1990s, the notion of genocide has a clear legal definition. In the wake of the Nazi Holocaust, an international convention was agreed on, specifically designed to prevent and punish perpetrators of genocide.50
Many of the rights described above are echoed in documents that seek to protect particularly vulnerable groups. Children are specifically guaranteed all the most basic rights, and many more, in the UN Convention on the Rights of the Child.51 This is particularly important because it has been ratified by every country in the world except the US and Somalia and is therefore also legally binding as a peremptory norm.
Refugee law, especially the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, obliges countries to give asylum to refugees who cannot return home because they face a well-founded fear of persecution.52 It prohibits host or asylum countries from returning (refoulement) them to a home country where they face these risks. At their most basic level, these bodies of international law seek to protect the rights to life and physical integrity when people are faced with the arbitrary power of their own state, when civilians are caught in armed conflict, and when refugees flee from war and persecution.
Ironically, people who have fled across borders as refugees are entitled to a better codified international protection than those who have fled from one part of their country to another. The internally displaced cross no international border and do not enjoy the same international protection afforded refugees. It is for this reason that states agreed in 1992 that the UN Secretary-General should appoint a special representative on IDPs and subsequently proposed a set of "Guiding Principles" that apply specifically to those who flee and are displaced within their own country.53 These norms largely reaffirm that the internally displaced should enjoy the same rights as others. But they also underscore certain key rights found in human rights or humanitarian law, such as the right not to be discriminated against, the right not to be arbitrarily displaced, the right to freedom of movement, and the right to essential food, water, shelter, clothing, and medical care.
People often speak of human tragedies that accompany gross and systematic violations of human rights, especially in wars. Victims die or fall sick because they do not have enough food and lack basic shelter and health care. These deprivations are another way to kill or maim, deliberately or by neglect. They are also another way of describing the unacceptable violations of the human rights to food, shelter, and health.
The rights just described apply to all human beings. They are universal. Notwithstanding any lingering controversy about whether rights such as freedom of expression or assembly should be applied equally in all cultures, there can be no argument that the rights to freedom from arbitrary killing, genocide, and torture apply equally to all people in every situation in every corner of the globe.54 Although controversial, some observers now argue that the range of "peremptory norms of international law" (jus cogens)55 includes the prohibition of genocide; systematic racial, religious, and gender discrimination; slavery; crimes against humanity; war crimes; enforced disappearances; murder; torture (including sexual violence); prolonged arbitrary detention; and denial of the right to self-determination.56
Individuals and vulnerable groups are at the heart of these international legal provisions. Treaties and other standards create a dense and interlocking set of fundamental rights and freedoms. Many of the UN texts are echoed in treaties adopted by regional bodies in Africa, Asia, the Americas, and Europe. UN and regional standards are benchmarks against which the seriousness of the behaviour of governments and rebel groups should be judged when it comes to possible intervention.
These legal guarantees raise legitimate expectations that protection will be provided against a host of threats from unrestrained political and military power. State authorities carry the primary burden for delivering relief, as for the protection of rights. Yet, humanitarian organizations argue that people have a right to receive assistance; and if this cannot be fulfilled by the state, outsiders have a right of access to fill the gap. The programme of action from the 1993 Vienna World Conference on Human Rights most directly supported this approach by reaffirming in Article I.29 "the right of victims to be assisted by humanitarian organizations, as set forth in the Geneva Conventions and calls for the safe and timely access for such assistance."
Other documents related to armed conflict, IDPs, and the UN's coordination role affirm that humanitarian organizations have a right to offer their services.57 Moreover, attacks on UN humanitarian workers delivering assistance to those in need are now recognized as international crimes.58 The documents set up a presumption that a state should accept such offers and facilitate assistance for those suffering from lack of food or medical care. In other words, the offer of help should not be arbitrarily rejected, especially when the authorities are unable or unwilling to provide the necessary assistance. But in the end, access is "subject to consent" of the state concerned, limiting the ultimate value of the supposed "right."
For present and future victims paper rights are meaningless without ways to enforce compliance by recalcitrant states. Human rights and humanitarian law, however, say little about the role of other states in ensuring compliance. When the UN was created in 1945, the Charter prohibition against interference in the domestic affairs of a state certainly meant that other states and international bodies might create standards and promote human rights in the abstract, but there was little consensus about calling violating states to account, with or without their consent.
It is undoubtedly true, however, that human rights are no longer purely a domestic matter. Not only are internal respect for rights and external legitimacy linked, but human rights law and practice have themselves also raised certain expectations on the part of victims and their advocates. The 1993 World Conference on Human Rights laid to rest, although not without debate, the argument that respect for human rights is purely a domestic matter. The simple and straightforward statement in Article I.4 of the programme of action was "the promotion and protection of human rights is a legitimate concern of the international community."
UN member states themselves started the erosion of the principle of noninterference soon after the Charter was adopted. The 1948 Genocide Convention suggested the possibility of intrusive enforcement by providing that any state party could call on the UN to "take such action under the Charter as they consider appropriate for the prevention and suppression" of genocide.59 It also provided that an international court could try perpetrators. The 1973 Apartheid Convention contained similar provisions and set up a new reporting procedure.60
At its first session in 1947, the UN Commission on Human Rights timidly admitted that "it had no power to take any action in regard to any complaints concerning human rights."61 Yet, over the next half century it developed a range of techniques - including expert fact-finding, public exposure, and condemnation - to hold states accountable. They are often applied inconsistently and weakly, but states under scrutiny nonetheless work hard to avoid bad publicity and condemnation. Governments that keenly reject coercive and intrusive methods used against them often simultaneously support similar methods being turned on another state.
Gradually, methods of enforcement are being developed to catch up with the long disappointed expectations of victims around the world. For example, the creation of the ICC and the landmark United Kingdom court decision that General Augusto Pinochet was not immune from prosecution for human rights crimes have propelled the debate about limits to impunity into a realm that was inconceivable 20 years ago. This form of intervention may become more prominent and effective, in itself and as a deterrent.
Because of the controversial nature of military intervention, it is not surprising that no human rights document explicitly approves it as an enforcement method. Nevertheless, human rights are not a pacifist doctrine. The Universal Declaration warns that, if human rights are not protected by the rule of law, people will "be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression." This recognizes a moral right of resistance; that violence in self-defence is a legitimate last resort to end massive human rights violations. Some commentators argue that applying deadly force to come to the rescue of others is a logical next step.
Existing treaties and conventions can be interpreted together as evidence that we are moving toward the notion that governments do not just have a negative duty to respect human rights by refraining from committing acts such as arbitrary killings. They also have a positive duty to fulfill the rights, such as taking steps to preserve life, as well as to protect people from having their rights violated by others. But what is the nature, character, and extent of these duties that transcend borders? If, as seems to be the case for an increasing number of state and nonstate observers, sovereignty has been infused with responsibility, what is the positive duty of the community of responsible states when one of its members acts so irresponsible as to inflict egregious suffering on its own population?
Most contemporary accounts of rights focus on the entitlements of individuals and consider obligations or duties secondary. An alternative approach is to complement the perspective of an individual's right to protection with the nature of the responsibilities that others may have to provide that protection. Attention to responsibilities is particularly important for those who conclude that the problem is less "unjustified interventions" than "unjustified refusals to intervene."62 Although it may be clear that someone ought to provide protection, are specific states morally bound to do so?
A focus on rights tends to draw attention away from agency and from the duties of specific actors. But, as Vincent pointed out, rights presuppose "the bearer of the correlative duty"63 against whom the right can be exercised. For rights to be realized, it is necessary to identify not only counterpart obligations but also specific obligation-bearers.
There is a fundamental difference between those rights that demand noninterference (negative rights) and those that demand specific performance (positive rights).64 Obligations for negative rights are universal. The right not to be tortured, for example, is one that everyone has a duty not to violate. And the violation of that right is an act of commission. Obligations are much less clear for positive rights. For example, making good on the right to food for people starving half-way around the world requires taking positive steps to overcome food shortages there. But who is specifically obligated? A violation - that is, a failure to act - is only an act of omission.
Positive universal rights can only be met "distributively," where institutions are established that define the specific relationships between right-holder and obligation-bearer. These institutions commonly exist within particular states or communities. The right to protection within a state is ideally ensured by the police and judiciary. In some cases, as with the European Court on Human Rights, these institutions span state borders. At the global level, they are far less common; and where they exist, they are far less robust.
Consequently, genuine and specific counterpart duties do not really exist at the global level for most positive rights. And nothing better illustrates this institutional lacuna than the protection of the rights of individuals caught in the throes of deadly conflicts. For example, there is no international institution currently responsible for providing protection for IDPs. Furthermore, even where institutions exist for war victims, such as UNHCR or ICRC, their legal authority is often questioned or circumscribed. Moreover, they certainly lack the capacity to compel the implementation of international norms. "Naming and shaming" are not the same as enforcing protection. "Seeking consent" is, by definition, a recognition that there is no institutional mechanism to translate the positive duty to protect civilians into a meaningful reality.
The preceding discussion outlines the full range of measures that should be afforded to civilians at risk in deadly conflicts. These are clearly negative rights that all are obligated to respect. But there is as yet no accepted obligation to protect those at risk in other countries. It is, nevertheless, worth considering how such an obligation may emerge. For although the language of "duties," "obligations," and "responsibilities" may not have the same resonance as "rights," it may be a more effective basis to encourage state action. Individuals and states may well "have a duty to help those that have no right to expect it."65 It would also clarify some of the tasks ahead. Those with responsibilities should set out in more specific terms the nature of their obligations: Which are the specific counterpart rights? To whom are they owed? And what institutional mechanisms could make good on them?
By beginning with responsibilities, attention turns to the practical measures that can be pursued by states and people who feel such an obligation. The questions are not just about protecting individuals against whom violence is committed; they also concern those even threatened by violence. This perspective focuses not on what to do with the violator, but on what to do for actual or threatened victims. The corresponding questions focus, not on retribution, but on practical steps to prevent or halt lethal conflicts and protect the basic rights of affected local populations. They raise questions about ethical rather than legal responsibility, both for interveners and for the targeted beneficiaries. They are about the types of actions that we are obligated to take and the ensuing moral responsibility.
With respect to exploring the responsibility to protect civilians, we should be in a position to answer two questions: Who has the responsibility to intervene? And for whom?
Answers to the question of who holds ethnical responsibility are, paradoxically, both clear and obscure. As mentioned several times, in the first instance the responsibility to protect human rights resides in the state. A fundamental problem arises when the first line of defence breaks down. This occurs when a state is unwilling or unable to protect the lives of its citizens or, worse still, is the perpetrator of mass abuse. In such cases, the community of responsible states has the residual responsibility.
Do different states have different degrees of responsibility relative to their power, the authority that they wield, their proximity to an armed conflict, and their interests relative to the situation? Three positions are generally taken. The first is that states with the greatest wealth and military power, those with the greatest clout, have the greatest responsibility (for example, the five permanent members of the Security Council). A second position claims that states are equally responsible but that the execution of that responsibility should be proportionate to their means (for example, regional powers, such as Nigeria in West Africa or South Africa in southern Africa). In a third view, states have different responsibilities that are reinforced by moral decisions. Past actions that may have contributed, wittingly or unwittingly, to the emergence of a humanitarian crisis affect the weight of moral responsibility (for example, Australia on East Timor).
Responsibility lies not only with state institutions, but also with multilateral bodies. For a global approach, it would seem logical to make better use of the UN. Such a call would have to be tempered, however, by a realistic assessment of the capacities at the disposal of the world organization. At present, and many would say for the forseeable future, UN capacities are in no way equal to the magnitude of likely needs. In the realm of the protection of human rights by global actors or institutions, effectiveness and consistency seem to be distant prospects. The same applies for regional or subregional organizations, though it would appear that they are increasingly assuming primary responsibility for dealing with conflicts within their own geographic area.
Under a cosmopolitan view, it is not just state leaders who possess the responsibility to protect - the net of responsibility is cast much wider, although our capacities and the ways in which we fulfill these duties differ. Indeed, when the club of states has been reluctant to endorse the legitimacy of humanitarian claims, those motivated by a cosmopolitan ethical perspective have acted individually and collectively, either to help change state policies or to defy them. More often they have worked through NGOs, and in the face of considerable opposition, to combat cruelty, inhumanity, and injustice.
The answer to the question of who is responsible is ultimately "everyone." Vincent argued in his challenging defence of basic rights that "a duty to respect the right to life of others falls on us all as individuals."66 Kofi Annan echoed this sentiment in issuing his own clarion call:
| So when we recall tragic evens such as those of Bosnia or Rwanda and ask: "why did no one intervene?," the question should not be addressed only to the United Nations, or even to its Member-States. Each of us as an individual has to take his or her share of responsibility. No one can claim ignorance of what happened. All of us should recall how we responded, and ask: What did I do? Could I have done more? Did I let my prejudice, my indifference, or my fear overwhelm my reasoning? Above all, how would I react next time?67 |
The question of where responsibility is directed is challenging. Are states equally responsible for all others who are denied freedom and oppressed by the absence of the rule of law? Or do states have different responsibilities depending on their prior relations?
Ultimately, the responsibility to protect ought not to be driven by proximity, but rather by the severity of a crisis for victims. In some ways, since the founding of the ICRC in 1864, humanitarians have been steadily pushing out the geographical boundaries for concern from the state, to the region, to the globe.
One way to approach universal obligations is to conclude that they relate not to particular judgements of conscience but to conscientiousness. Ideally, the community of states would share responsibility to protect the rights of all civilians in the territory of all its members, but as a minimum at least its weakest members. One analyst, for example, summarizes that "the power of obligation varies directly with the powerlessness of the one who calls for help."68 Which acts are correct may depend on circumstances, but there is an absolute obligation to decide and act. Remaining on the sidelines is not an option. As another observer explains, "Our obligation is relative to the situation, but obligation in the situation is absolute."69 Personal and institutional resources are far from unlimited. At the same time, egregious suffering, wherever it is located, morally requires similar responses.
Commentators - both proponents and critics of intervention, alike - often criticize double standards. They argue that intervening states and international organizations should be consistent. At the same time, the Cold War's "single standard" - to do nothing everywhere - is hardly preferable to acting at least some of the time.
The universality of human rights certainly demands consistency in responding to massive violations. Yet, interventions in countries to stop massive human rights violations are rare and highly selective. Why act in Kosovo but not in Rwanda? Why protect the Kurds in northern Iraq but not in Turkey? Why emphasize a crisis in Somalia and not a three-decade- long emergency in neighbouring Sudan? Why intervene against smaller states but ignore Russian actions in Chechnya?
The human rights of some populations still seem to be worthier of defence than those of others. The foreign policy of states and their decisions about humanitarian intervention are dictated in most cases, not merely by humanitarian objectives, but also by economic, political, territorial, and military self-interests. In brief, humanitarian interventions may be only partially motivated by humanitarian intentions.
The legitimacy of a principle is certainly undermined by the erratic - or, worse, demonstrably selective - application of that principle. For it conveys the impression that "some are more worth protecting than others."70 This is a huge problem internationally, but it exists within domestic jurisdictions as well. Strict consistency in law enforcement remains more or less elusive everywhere.
To expect states to intervene in every worthy case and have pure humanitarian motivations is undoubtedly to demand the impossible.71 The world presents far too rich an array of human rights violations, as attested by voluminous annual reports from such groups as Amnesty International and Human Rights Watch. There is already difficulty enough in mobilizing against documented acts of genocide, and so it seems myopic to pretend that wholesale interventions in cases at lower levels of violation are even remotely plausible. Hard-headed judgements are required about the scale of evil and the scale of international capacities. However, it is feasible to aim to avoid such maximum evils as genocide and ethnic cleansing, except when a major power is responsible and intervention would undoubtedly result in more harm than good.
National and world politics will never be consistent or pure in heart. The ideal should not be the enemy of the good. Yet, what is the price of recognizing this standard reality? Should selective military interventions be condemned as immoral and in violation of the bedrock principle of the universality of human rights? The issues of consistency and capacity to act are important to any definition of interests and responsibilities. A settled principle of ethical reasoning is that "ought implies can." At the same time as ethical principles should ideally be applied uniformly, it would be foolish to ignore the reality that such an obligation ultimately depends on the operational ability to carry it out. Because of the difficulty in saving all victims all the time, should we not resort to trying to save some of the victims some of the time? In the context of a pragmatic affirmative response to this question, the issue of "hard choices," and even triage, cannot be avoided. Or, as the Secretary-General wrote in his report to the Millennium Assembly, "The fact that we cannot protect people everywhere is no reason for doing nothing when we can."72
While aspiring to the ideal of consistency as a long-term objective, most commentators would say that the inability to intervene everywhere is not an excuse not to intervene when necessary and possible and where it can make a difference. The inevitable double standards of state practice should not be an excuse for paralysis. We should not abandon the aspiration for coherent responses to international humanitarian crises, but even occasionally doing the right thing well is certainly preferable to doing nothing routinely.
In exploring the nexus between humanitarian intervention and state sovereignty, one of the crucial dimensions - indeed, for some commentators the only valid starting point - is public international law. The key question revolves around authority: Who has the right - and under what circumstances - to authorize the use of deadly force in the pursuit of humanitarian objectives?
This question has been controversial for decades, and the principal positions in the debate are clear. One side argues that there is no exception to the requirement of a Security Council mandate. If approval is not forthcoming for whatever reason, then the intervention should not proceed. Should an intervention occur without such approval, it is illegal. Even the strongest proponents of relatively unfettered humanitarian intervention accept that states planning to intervene should systematically seek Security Council authorization prior to the intervention. However, some then argue that this requirement can be superseded in cases of supreme humanitarian emergency, an exceptional necessity when legal norms clash.
These alternative perspectives, articulated in bold relief around Kosovo within the United Nations (UN) Secretary-General Kofi Annan's statements before, during, and after the Kosovo War, capture the tensions between responding to an unfolding catastrophe and the importance of not bypassing the Security Council. On March 24, 1999, as cruise missiles and high-altitude bombing began, he stated,
| I deeply regret that, in spite of all of the efforts made by the international community, the Yugoslav authorities have persisted in their rejection of a political settlement, which would have halted the bloodshed in Kosovo and secured an equitable peace for the population there . It is indeed tragic that diplomacy has failed, but there are times when the use of force may be legitimate in the pursuit of peace. |
However, the Secretary-General also explicitly regretted the Security Council's inability to act. Russia and China, meanwhile, unconditionally condemned the campaign by the North Atlantic Treaty Organization (NATO) as illegal and contrary to the UN Charter.
It might be expected that a detailed review of the main international legal instruments, particularly the UN Charter,1 would provide clear guidance about the conditions under which humanitarian intervention is legal and illegal.2 While this supposition is accurate on some points, in many other respects the range of legal interpretations and opinions is very broad.3
In the first instance, inconsistencies apparent in the Charter and other key legal instruments prohibit drawing simple conclusions. Perhaps more importantly, law is not static; it evolves on the basis of changing state practice. Changing experiences shape principles and norms, just as principles and norms influence policies, decisions, and operations. As a result, and in addition to codified international law, custom also determines what is legal and illegal. To complicate matters, some observers argue that the intensity and quantity of rapid international interactions combine with activities by intergovernmental bodies to increase dramatically the rate at which customary law is being created.4
The term "unilateral" is avoided for the most part in this volume because of the differences between its use by international lawyers and by most social scientists. Whereas the latter often use the term to signify a decision or action by a single state (in juxtaposition to "bilateral," by two states, and to "multilateral," by more than two states), the former employ the term as a synonym for "nonauthorized" and hence of dubious legality no matter how many states have approved.
The analysis that follows does not stop with the current status of public international law. If there are significant gray areas relating to the authorization of humaitarian intervention, then questions of legitimacy become as important as questions of law. Legitimacy is an important dimension even when legality is clear. The Independent International Commission on Kosovo, for example, concluded that "the NATO military intervention was illegal but legitimate."5 And certain factors - credible evidence of the scale of the human crisis, a genuine internal call for assistance, the conduct of the intervening states and agencies, and longer term outcomes - enhance the broader sense of legitimacy. In extreme cases, outcomes that undermine the legality of an intervention - an isolated veto in the Security Council or a supporting vote in the General Assembly that secures a majority but not two-thirds - may, in fact, strengthen its legitimacy.
This discussion begins with an examination of the legal bases for intervention. It first focuses on the UN Charter legal regime governing coercive intervention, and whether there are any other existing legal grounds for humanitarian intervention. The essay then turns to the question of customary international law and examines the impact of changing state practice, particularly in the 1990s, on Charter prohibitions. Given the degree of legal controversy, it concludes with an exploration of the growing importance of the legitimacy of the institutions that authorize interventions and of the interventions themselves.
The prohibition on the use of force by states is widely regarded as one of the central building blocks in the foundation of the UN Charter. Scholars classify this norm as jus cogens, or a peremptory norm, that cannot be modified by subsequent or inconsistent norms, treaties, or actions. Nevertheless, controversy persists about the intended breadth of this prohibition and whether it has been undermined by UN failures to uphold global security and by the rise of support for human rights and antigenocide initiatives.
States are assured by the domestic jurisdiction limitation of Article 2 (7) that "[n]othing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state." On the face of it, this provision accepts a sharp separation of internal and international conflict, restricting UN action to the latter. Reality is quite different, as the earlier discussion of the expanding definition of threats to international peace and security has made clear. Moreover, even within this article itself, there is an exception through the commitment that "this principle shall not prejudice the application of enforcement measures under Chapter VII." There is also a provision that exempts individual or collective self-defence (Article 51). Hence, both Security Council authorizations for coercion and legitimate self-defence trump the domestic jurisdiction restriction.
The whole tenor and context of the Charter is an effort, as stated at the outset of the Preamble, to "save succeeding generations from the scourge of war." As such, the UN itself is subject to this regime and is entrusted with the mission of minimizing the role of force in international affairs. This directive is articulated in Articles 2 (3) and 33, instructing states to settle their disputes by peaceful means. It is also implicit in the relation between Articles 41 and 42, mandating the Security Council to rely, to the extent possible, on nonmilitary measures in carrying out its responsibilities.
Thus, the limits on UN authority with respect to responding to human catastrophes are essential to understanding contemporary humanitarian action. But so, too, are the concrete provisions that facilitate justified responses. The UN Charter provides the highest source of legal and constitutional authority in relation to claims relating to the use of force.
Yet, the authority of the Charter remains obscure in specific instances. It contains inconsistent norms and principles (for example, to promote human rights and respect domestic jurisdiction). It also has dormant provisions, especially in Chapter VII, that give a differing impression if the Charter is read literally or interpreted in light of subsequent events. The nonfunctioning Military Staff Committee is one clear-cut illustration. There is continual evolution and innovation in norms and principles through interpretation and practice. A dramatic example is the evolution of international human rights standards from a vague aspiration to a basis for judging conduct and seeking implementation and protection. As such, the Charter regime blurs the distinction between what is subject to international authority and what falls within domestic jurisdiction.
Finally, the Security Council appears to be at liberty to determine its modes of operation and perhaps even its mandate, irrespective of what the Charter says. For instance, the absence or abstention by permanent members is not treated as preventing a Security Council decision, despite the language of Article 27 (3), which requires the "affirmative vote of nine members including the concurring votes of the permanent members." Actions taken by the Security Council regarding the use of force may therefore become precedents, even if they seem inconsistent with the Charter.
In detailing the Charter's approach to the use of force in response to deadly conflicts with catastrophic human consequences, the discussion here begins with the Charter provisions dealing with armed conflict and Security Council responsibilities (Chapters VI, VII, and V). It continues with the relevant role of the General Assembly (Chapter IV) and "other" bases in the Charter, including Chapter VIII.
The Security Council's legal capacity to respond to crises that give rise to human catastrophes are set out in Chapters VI and VII of the UN Charter. Although entitled "Pacific Settlement of Disputes," Chapter VI sets out the decision making framework for UN responses to human catastrophes. There need not be a "dispute" to generate UN competence to respond. Article 34 states that the Security Council may investigate "any dispute, or any situation" that may cause "international friction." There is no doubt that these provisions were designed for international rather than intranational disputes. Nevertheless, the evolutionary practice of the UN has eroded this distinction, empowering the Security Council to regard internal situations that give rise to broader security concerns as legitimate subjects for consideration and response.
During the Dag Hammarskjöld era, an "innovation" in the interpretation of Chapter VI led to the development of UN peacekeeping that presupposed consent by the relevant state and a very limited role for UN personnel. At the outset, they were confined to the use of force only in self-defence, while this was later extended to protection of an operational mission's mandate. This expansion beyond dispute settlement had the significant incidental effect of bringing UN authority to bear on essentially internal situations. Thus, if a particular territorial government gives its consent, the Security Council can authorize a military presence that is designed to avert, mitigate, or overcome an incipient or ongoing human disaster. Traditional UN peacekeeping activities are an original and important contribution to international peace and security, and they have grown substantially in the post-Cold War era.6
Under the terms of Chapter V, the Security Council has primary jurisdiction over international peace and security and is empowered to make decisions binding on UN member states. Article 24 was formulated "to ensure prompt and effective action." The article obliges members of the Council to execute their mandate consistent with the principles and objectives of the UN. Some commentators have argued that Council therefore has not only the right, but also the responsibility, to act in the face of extraordinary humanitarian crises. Although the Charter may be read as allowing the Council to take such action, for most analysts no such obligation exists in Article 24 or elsewhere.
According to Article 27, Security Council decisions about nonprocedural matters, including the use of force, require support from 9 of its 15 members without a veto being cast by any of the five permanent members of the Security Council: China, France, Russia, the United Kingdom (UK), and the United States (US).
The sharp edge of the Council's powers are spelled out in Chapter VII, which provides the contours of the Charter approach to collective security, again designed for international armed conflict. The primary concern in 1945 was to provide member states with an assurance that their territorial integrity and political independence would be protected in the event of "threats to the peace, breaches of the peace or acts of aggression."
The Security Council was therefore empowered in Article 39 to "decide what measures shall be taken to maintain or restore international peace and security." Article 41 indicates that nonmilitary measures should be used to the extent possible to address such threats or breaches, as well as acts of aggression. In the event that nonmilitary measures prove largely unresponsive to humanitarian concerns, Article 42 authorizes the Security Council to decide on military measures "as may be necessary to maintain or restore international peace and security."
As a result of the Cold War, the Security Council was largely inactive as far as humanitarian aspects were concerned. There was a humanitarian tabula rasa - no resolution mentioned the humanitarian aspects of any conflict from 1945 until the Six Day War of 1967.7 The first mention of the International Committee of the Red Cross8 was not until 1978, and in the 1970s and 1980s, "[t]he Security Council gave humanitarian aspects of armed conflict limited priority but the early nineteen-nineties can be seen as a watershed."9 During the first half of the decade, twice as many resolutions were passed as during the first 45 years of UN history. They contained repeated references, in the context of Chapter VII, to humanitarian crises amounting to threats to international peace and security, as well as repeated demands for parties to respect the principles of international humanitarian law (IHL).
Over the past decade, the Security Council has broadened its mandate considerably. In the aftermath of the Gulf War, it authorized protective action for the Kurdish minority in Iraq, and this authority has been interpreted by the US, the UK, and France as justifying the establishment and maintenance of no-fly zones, as well as attacks on Iraqi radar and antiaircraft sites. During the wars in Bosnia and Herzegovina, the Security Council authorized a robust form of peacekeeping, including safe havens to protect the Muslim civilian population of Bosnia from Serbian ethnic cleansing.
Together with the failure of the UN peacekeeping force in Rwanda to prevent genocide in 1994 and the world organization's abandonment of a nation-building role in Somalia, the Bosnian experience cast a dark shadow over the effectiveness of the Security Council to respond to the most calamitous human tragedies. In these cases, however, the limitations were less about legal competencies and more about political and operational weaknesses. Some commentators have concluded that a narrower view of the Security Council's legal authority would help the UN avoid the embarrassments associated with political and operational overextension.
An important and unresolved question is whether the Security Council can exceed its own authority by violating the constitutional restraints embedded in the Charter, particularly the inhibition on UN intervention contained in Article 2 (7). This issue has only been tangentially considered by the International Court of Justice (ICJ) in the Lockerbie case. The 1998 decision on preliminary objections affirmed that the Security Council is bound by the Charter. At the same time, there is no provision for judicial review of the Council's decisions, and therefore no way that a dispute over Charter interpretation can be resolved. With specific reference to Council-authorized intervention, there appear to be no theoretical limits to the ever-widening interpretation of international peace and security.
The General Assembly's role in matters of peace and security is subordinate to the Security Council's.10 Should the Council be unable or unwilling to authorize action, the matter can be considered by the Assembly. Article 11 provides that the General Assembly may consider and make recommendations (though not decisions) about matters relating to the maintenance of international peace and security. However, under Article 12, it is constrained from making such recommendations (though not specifically from considering the matter) "while the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter unless the Security Council so requests."
Furthermore, the "Uniting for Peace" Resolution of 1950 specifically authorizes the Assembly to make recommendations on enforcement action when the Security Council is unable to take a decision. As a result, the General Assembly is a potential source of authorization when the Security Council is incapable of acting.
Moreover, widespread concerns about the slowness of General Assembly decision making seem unwarranted. Although it is not perpetually "on call," like the Security Council, the "Uniting for Peace" Resolution provided for holding an Emergency Special Session. Convened within 24 hours of a request being made, an Emergency Special Session must also "convene in plenary session only and proceed directly to consider the item proposed for consideration in the request for the holding of the session, without previous reference to the General Committee or to any other Committee."11 Such sessions, however, are comparatively rare, having been convened only 10 times in the UN's history. The fact that this procedure has been used only three times to authorize a military operation - the last in the early 1960s, over the crisis in the Congo - reduces its relevance in the eyes of many commentators.
The main hurdle, once the matter has been brought before the Assembly, is the requirement in Article 18 (2) that any resolution relating to the maintenance of international peace and security have a two-thirds majority of UN members present and voting (that is, not abstaining). If all 189 are present and none abstains, then 126 affirmative votes are required. Given the significant opposition to a variety of past military interventions, the politics that produce deadlock among the Security Council would tend to produce similar vexing results in the General Assembly.
An intervention that took place with the necessary two-thirds backing or more in the General Assembly would almost certainly have a moral and political force sufficient to categorize it as "legal," even without Security Council endorsement. It would certainly be regarded as legitimate. Indeed, a vote in the Assembly that came close to the required majority would probably be sufficient to confer additional legitimacy on an ensuing humanitarian intervention.
Another potential source of authorization for interventions is regional organizations. Chapter VIII of the Charter assigns a possible role in the maintenance of international peace and security to "regional arrangements or agencies," though with the caveat that the actions are consistent with the UN's purposes and principles. Article 52 (1) makes regional arrangements or agencies the first place where efforts should be made to "achieve pacific settlement of local disputes before referring them to the Security Council."
In terms of enforcement action, the relationship is set forth in clear language in Article 53 (1), which empowers the Security Council to "utilize such regional arrangements or agencies for enforcement action under its authority." The next sentence makes clear that regional organizations lack an independent authority with respect to enforcement undertakings because "no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council." Article 54 imposes an obligation that the "Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements" with respect to "the maintenance of peace and security."
Many international human catastrophes have direct effects on neighbouring countries, including massive refugee flows and use of territory as a base by rebel groups. Thus, states bordering on a war zone usually have strong interests, only partly humanitarian, for dealing swiftly and effectively with a large scale human catastrophe. Moreover, they may be better placed to act than the UN because of their familiarity with the intricacies of the local situation and actors. But regional organizations are only allowed to take action up to and including peacekeeping and are precluded from exercising Chapter VII powers, unless the Security Council has authorized them to do so.
In addition to the powers granted to the Security Council, the General Assembly, and regional organizations, there are other potential legal grounds on which intervention for broadly humanitarian purposes might be based within the overall parameters of the Charter regime. Among the most important is the right of self-defence, the Genocide Convention, IHL, human rights law, and restoring democracies.
The "inherent right of individual or collective self-defence," provided for under Article 51, is one possible justification for the legal use of force with substantial humanitarian implications.12 This right, however, has been restrictively interpreted by the ICJ as being available only in response to "an armed attack."13 Nevertheless, some legal scholars, especially in North America and Europe, have for several reasons viewed it in more expansive terms. First, the narrowing of the inherent right was based on the expectation that the UN would establish an effective mechanism for collective security. The obvious failure to realize this goal, they argue, may effectively place the community of states in a pre-Charter legal setting. Second, in a number of instances, states using force beyond the bounds of Article 51 have not been censured by the Security Council if their acts have been viewed as reasonable exceptions. This has been particularly true of unilateral responses to international terrorism. A number of past interventions undertaken at least in part for humanitarian reasons or with significant humanitarian benefits - East Pakistan, Uganda, and Cambodia - were justified on the grounds of self-defence.
The 1948 Genocide Convention and the four Geneva Conventions of 1949 and their two Additional Protocols of 1977 impose obligations on warring parties.14 Yet, both are explicit that they do not provide an independent foundation for intervention - responses must be undertaken within the context of the UN Charter. Article 1 of the Genocide Convention contains specific obligations both to prevent and to punish perpetrators of that crime, but Article 8 refers to calling on the competent organs of the UN to take such action under the Charter as they consider appropriate.
Similarly, IHL provides for measures that may be taken in the event of "grave breaches." Article 89 of Additional Protocol I is clear: "In situations of serious violations of the Conventions or of this Protocol, the High Contacting Parties undertake to act, jointly or individually, in cooperation with the UN and in conformity with the UN Charter." The conclusion that these instruments cannot provide independent justification for intervention is further strengthened in light of UN Charter Article 103, which gives primacy to Charter obligations in the event of a conflict with other legal ones.
The Charter clearly advocates respect for, and the advancement of, human rights.15 But this is done in a language and manner that defers both to the primacy of sovereignty and the prohibition on the use of force. Article 1 (3) indicates that a purpose of the UN is "promoting and encouraging respect for human rights." Article 55 (c) sets forth the conviction that "universal respect for, and observance of, human rights and fundamental freedoms" are essential for the establishment of the sort of stability that could underpin a peaceful world. Perhaps more relevantly, Article 56 asserts that "[a]ll Members pledge themselves to take joint and separate action in co-operation with the Organization." Generally, these provisions have been read as aspirations and not as giving rise to any legal foundation for enforcement action.
Since 1945 the development of human rights law and institutions has made impressive strides, especially since the 1993 Vienna Conference on Human Rights and Development. The Office of UN High Commissioner for Human Rights was established, thereby becoming a focal point within the UN system that has increased both the visibility and the international salience of official (that is, UN), rather than private (that is, led by nongovernmental organizations), human rights advocacy. Some scholars have argued that human rights should now be viewed on an equivalent basis of authority when considering the use of force.16 With such an outlook, the use of force to address severe deprivations of human rights would be legally permissible. Recent UN Secretaries-General have hinted at such sentiments, though this perspective remains controversial.
A further potential rationale for military intervention that could be grouped under the label of "humanitarian" is the restoration of a democratic regime,17 following its illegitimate removal. The authorization of the use of force in Haiti, at the request of the elected government then in exile, has been cited as evidence of an emerging right of intervention in support of democracy. An overthrow of a democratically elected government could plausibly threaten international peace and security only indirectly, but nonetheless it has resulted in Security Council action. This logic builds on earlier precedents of enforcement against the white-majority regimes of Southern Rhodesia and the Republic of South Africa.
Actions in Sierra Leone - and perhaps in Guinea-Bissau, the Central African Republic, and Lesotho - may provide further evidence of a change in international legal norms pertaining to "prodemocratic" intervention. The Council's post hoc endorsement of the Economic Community of West African States's (ECOWAS's) intervention in Sierra Leone seems to add further weight to the relevance of restoring democratic governments as a new rationale for intervention. The Security Council in this case authorized action under Chapter VII against an "illegitimate" regime, without even taking refuge in assertions of "extraordinary," "exceptional," or "unique" circumstances. Indeed, some commentators have gone so far as to argue that coups against elected governments are now, per se, violations of international law and that regional organizations may be licensed to use force to reverse such coups in member states.18
Some commentators and governments argue that a ground invasion or bombing of a target state necessarily violates its territorial rights and political independence, no matter what the provocation. And they reject out of hand the idea that an invader would act in the true interests of local populations.
These arguments are countered by those who take the view that there often is no alternative to intervention - military and nonmilitary - as a means of saving lives when human catastrophe arises. Truly repressive governments represent only the interests of corrupt elites and not of the vast majority of people. The question of state sovereignty is beside the point, because popular sovereignty is so clearly violated by such regimes.
In considering the potential legality of interventions undertaken outside the framework of the UN Charter, there is inevitably some repetition of the preceding analysis. If intervention for humanitarian purposes approved by the Security Council is a sine qua non, many argue that intervention without a mandate from the Security Council is simply illegal. In addition, many of the cases in which states have claimed to exercise a right of humanitarian intervention have involved some form of action by the Council, albeit decisions that fall short of the authorization of force or that occur after an actual military intervention.
The dispute over claims about the changing nature of state practice, including its impact on the current status of the law regarding the use of force, are at the heart of the debate on whether humanitarian intervention may proceed in the absence of explicit Security Council authorization. The interventions of the 1990s have led a number of states and commentators to argue that a basis already exists in customary international law to support such interventions, albeit seriously circumscribed - that is, only where there is a large scale threat to life, and even then only as a last resort. If an obligation to respond to human tragedy exists with the Council's blessing, it also does without one. Others have suggested that such a right is emerging as a rule of customary law, but it has not yet achieved that status.
As a group, developing countries have explicitly rejected the idea that any broader precedent was being set. By consensus, the final communiqué of the Meeting of Ministers for Foreign Affairs and Heads of Delegation of the 113-member Non-Aligned Movement, held in New York, on September 23, 1999, stated, "We reject the so-called 'right of humanitarian intervention' which has no legal basis in the UN Charter or in the general principles of international law."19 The Group of 77 Summit in Havana, in April 2000, adopted by consensus the Declaration of the South Summit; this time, 133 countries agreed to include the same exact sentence.20
At the same time, the opposition among developing countries is not as solid as these statements might indicate. When the votes were cast on General Assembly Resolution 55/101 (debated during the bombing of Kosovo and calling for respect for the principles of nonintervention), there were 52 opposed. In addition, 33 developing countries either abstained or did not vote at all. There has been considerable support from individual developing countries and their regional associations for specific humanitarian interventions. These countries include not only the 16 African member states of ECOWAS, but also a majority of members of the Organization of African Unity (OAU) who called for intervention in Rwanda.
Thus, there are compelling policy considerations on both sides of the debate. On the one hand, those who argue against the existence of any right of humanitarian intervention without the authorization of the Security Council point to the priority the UN Charter gives to the maintenance of international peace. On the other hand, the Charter and modern human rights law place a high priority on the protection of the individual from widespread killing and the horrors of ethnic cleansing. Inaction by the Security Council, as in Rwanda in 1994, can lead to abuses of an even greater kind and make the Council liable to the charge of tragic ineffectiveness.
The principal argument against the legality of intervention without a Security Council mandate is that it is said to violate the prohibition on the use of force enshrined in Article 2 (4).21 Since such a humanitarian intervention falls within neither of the exceptions specified in the Charter, the use or threat of force to pursue humanitarian objectives is said to be contrary to international law.
A second argument follows from the bedrock principle of international order. Since each state is sovereign within its own territory, what it does within that territory, even if it involves a violation of international law, cannot give rise to a right of intervention by other states. At one time, this argument was advanced to oppose any form of interference, even diplomatic representations regarding a state's human rights record. It is seldom heard today in that extreme form. However, it continues to enjoy considerable support as an argument against humanitarian intervention without the express authorization of the Security Council.
In support of these arguments, commentators also point to the fact that neither the Declaration on the Principles of Friendly Relations in General Assembly Resolution 2625 (1970) nor the Definition of Aggression in General Assembly Resolution 3314 (1974) contains any hint of the existence of such a right. On the contrary, the definition condemns all forms of military intervention and thereby appears to preclude the emergence of a concept of humanitarian intervention.22
Supporters of an emerging custom have a different interpretation. They argue that Article 2 (4) states only one of the principles on which the UN operates, and it must be contextualized. The Charter is a living instrument that has evolved over the years and will continue to do so. Moreover, the Charter declares, beginning with the Preamble and Article 1, that the world organization's purposes include the promotion of human rights. The development of international human rights law since 1945 - through global agreements such as the Genocide Convention, the 1966 covenants on civil-political and economic-social-cultural rights, and regional instruments in Africa, the Americas, and Europe - has reached the point at which important aspects of the treatment by a state of its own population can no longer be regarded as domestic affairs. In particular, widespread and systematic violations of human rights involving the loss of life (or threatened loss of life) on a large scale are now well established as a matter of international concern.
Proponents of intervention argue that neither the concept of state sovereignty nor the general duty of nonintervention can preclude military intervention in extreme cases. International law in general, and the UN Charter in particular, do not rest exclusively on the principles of nonintervention and respect for sovereignty. The values on which the international legal system rests also include the Preamble's call to respect "the dignity and worth of the human person." While virtually no one suggests that intervention is justified whenever a state violates human rights, it does not follow that international law invariably requires that respect for the sovereignty and integrity of a state should in all cases be given priority over the protection of human rights - especially the most basic, the right to life.
Faced with human rights violations that may entail large scale loss of life, international law cannot - despite concerns that this would result in the violation of the sovereignty of the targeted state - require that all states stand back and allow massacres and massive forced migrations to take place. Supporters of humanitarian intervention argue that the prohibition on the use of force in Article 2 (4) is not an absolute prohibition but one whose limits have to be determined by reference to the actual practice of states and UN organs. For ex-ample, self-determination as a concept has evolved over time, particularly in the context of decolonization, legitimizing armed struggle. Similarly, the prohibition on the use of force and the equilibrium between that principle and other fundamental Charter principles is not static and develops with state practice and actions by the UN system.
Nor, some argue, does the status of the prohibition on the use of force as a rule of jus cogens preclude the lawfulness of military intervention for humanitarian purposes. The issue is not whether a customary law on humanitarian intervention has overridden Article 2 (4), but rather what is the extent of the rule of jus cogens - that is, how should this prohibition be interpreted in light of state practice and any evolving trends in customary international law. It has even been suggested that it is only the prohibition of the aggressive use of force that enjoys that status. Hence, there may be no prohibition on the use of force that falls short of aggression.
Neither, they argue, can the absence of any mention of "humanitarian intervention" in the Declaration on the Principles of Friendly Relations or the Definition of Aggression be regarded as conclusive. These resolutions are not legally binding; at most, they represent the interpretation of the relevant provisions of the Charter when they were adopted over a quarter of a century ago. They cannot set that interpretation in stone for all time. Furthermore, they did not represent an unequivocal rejection of military intervention for humanitarian objectives when they were adopted.23
In order to assess the relative merits of these positions, the legal claims must be tested against state practice. Specific instances of intervention were examined earlier. While there were several cases in which states asserted a right of humanitarian intervention before 1945, these are of limited relevance today as they occurred against the background of a law regarding the use of force that permitted states a far greater latitude than under the Charter regime. Accordingly, the analysis here confines itself to quickly reviewing practice since 1945 and emphasizes the post-Cold War era, in particular the "hard" case of Kosovo.
Most instances in which states referred to humanitarian objectives in justifying the use of force prior to the Cold War's demise actually turned on claims of self-defence or the consent of the government of the state on whose territory the intervention took place. The absence of any clear reliance on humanitarian intervention during this period does not, however, mean that the practice of this period rejects the existence of such a right, merely that there were no manifestations.
It is worth revisiting three key cases discussed earlier, where the humanitarian rationale was secondary but the humanitarian benefits were substantial. With regard to India's conflict with Pakistan, New Delhi did not rely on humanitarian intervention as a justification for its resort to force - it claimed to have acted in self-defence. Yet, India referred on several occasions to the plight of the local population (including at least 1 million dead) and of the 10 million refugees on its own territory.24 Furthermore, its actions went beyond what some would have regarded as proportionate self-defence; and in retrospect, it is now widely accepted that India could have based the intervention on humanitarian grounds.
The Vietnamese intervention in Cambodia in 1978-1979 resulted in the overthrow of the genocidal Pol Pot regime. In the Security Council debate on Cambodia, Vietnam distinguished between its own border conflict with Cambodia and the rebellion against Pol Pot within Cambodia, basing its justification for the invasion on the former. The case was further complicated by two factors: an unconvincing reliance on an invitation said to have been extended to Vietnam by a rival Cambodian government which Vietnam had been responsible for creating; and a sustained period of occupation. Once again, this justification could not have covered the full extent of the action taken by Vietnam, and clear references were made to the horrors perpetrated by the Khmer Rouge.
After being attacked by Uganda in 1979, Tanzania resorted to force, though President Julius Nyerere denied his intention to change the government in Kampala. Nevertheless, the Tanzanian forces went on to do precisely that. While self-defence undoubtedly provided a justification for the initial resort to force, it is difficult to see how it could have justified the full extent of Tanzania's action. Ultimately this use of force could have been justified in large measure by a right to protect the population of Uganda suffering under the rule of Idi Amin. At the time, and in retrospect, the intervention was widely seen as legitimate, and the humanitarian benefits were praised.
International reaction to these three cases was mixed. There was virtually no support from states for the notion of humanitarian intervention, yet the salutary impact was clear in all three instances. There was general acceptance of Tanzania's action in Uganda; and the effects of India's action were swiftly recognized, as Bangladesh was admitted to the UN, the Commonwealth, and other international institutions. Only in Cambodia - where Cold War and Sino-Soviet rivalries were prominent and numerous governments were highly suspicious of Vietnam's motives and intentions - was there a concerted attempt to deny recognition to the government created as a result of the intervention and to censure Vietnam for the invasion and the occupation.
The fact that India, Vietnam, and Tanzania did not make more of the argument that their actions were justified on humanitarian grounds suggests that this was not perceived as a strong legal argument at the time. But the general acquiescence at the UN in the Tanzanian and Indian cases, as well as a subsequent drop of relief in Sri Lanka by the Indian Air Force, was undoubtedly facilitated by a general acceptance of outcomes with such substantial and beneficial humanitarian effects.25
State practice during the period of 1945-1990 is inconclusive. It is insufficient to sustain either a right of humanitarian intervention or an unequivocal rejection of the concept. It is not surprising, therefore, that most studies of the subject during this period are cautious in reaching conclusions.26
Four interventions undertaken in the 1990s provide evidence in support of the argument that a legal custom related to humanitarian intervention without Security Council authorization is at least emerging. The four interventions include ECOWAS's intervention in Liberia in 1990 and in Sierra Leone in 1997, the establishment and enforcement of no-fly zones in northern Iraq in 1991, and NATO's operation in Kosovo and the Federal Republic of Yugoslavia (FRY) in 1999. These interventions occurred in three geographic areas - Africa, the Middle East, and Europe - and together included military contingents from several continents.
In August 1990, ECOWAS's Cease-fire Monitoring Group (ECOMOG) intervened in Liberia to impose a ceasefire, restore democracy, and stop the senseless killing of innocent civilians.27 Again in May 1997, Nigeria intervened in Sierra Leone to restore law and order, reverse the coup d'état, and protect human rights. In August 1997, ECOWAS mandated ECOMOG to enforce an economic embargo against the country and restore law and order there. Although presidents Doe and Kabbah both publicly requested external intervention, the unstable state of affairs inside each country raises questions as to whether such requests indicated genuine consent. At the time of the requests, neither Doe nor Kabbah was a de facto ruler of the state. Without local consent or a Security Council authorization, both military actions can be seen as involving the assertion of a right of humanitarian intervention.
International reaction to both interventions was generally supportive. The president of the Security Council issued statements supporting both interventions, and acting under Chapter VII of the UN Charter adopted several resolutions that deemed the situation in both countries a threat to international peace and security.28 Resolutions 788 (1992) and 866 (1993) imposed a weapons embargo against rebel factions in Liberia and established the UN Observer Mission in Liberia, which was co-deployed side by side with ECOMOG forces. Resolution 1132 (1997) imposed an arms and petroleum embargo and travel restriction against the junta and the Revolutionary United Front in Sierra Leone. Resolutions 788 and 1132 sanctioned ECOWAS to enforce their terms. Security Council action in these cases effectively provided a retroactive de jure seal of approval on the interventions.
In April 1991, the UK, the US, France, and the Netherlands intervened in northern Iraq to create "safe havens" to enable the large numbers of refugees and displaced persons to return home in safety. While the Security Council had earlier condemned Iraqi repression of the civilian population as a threat to international peace and security, the actual authorization was not adopted under Chapter VII and did not specifically authorize the application of military force. The action taken by the intervening states was described by them as "being in support of Resolution 688," but it was not authorized specifically by that resolution. Nor could it be regarded as bound up with the self-defence of Kuwait. If it was lawful, therefore, the intervention had to be based on humanitarian justifications. That argument was not, however, fully articulated until the following year.
In 1992, a "no-fly zone" was imposed in southern Iraq by London and Washington to protect the civilian population. The UK defended these actions as the exercise of an exceptional right to intervene on humanitarian grounds. Speaking in 1992, after the imposition of the "no-fly zone" in southern Iraq, British Foreign Secretary Douglas Hurd said, "Not every action that a British government or an American government or a French government takes has to be underwritten by a specific provision in a UN resolution provided we comply with international law. International law recognizes extreme humanitarian need." He continued, "We are on strong legal as well as humanitarian ground in setting up this 'no-fly zone'."29 With the exception of Iraq, very few states challenged the assertion of the need for military intervention in this case or challenged the underlying claim that a right of intervention existed for such extreme humanitarian cases.
There is no need to repeat the details of this well-documented case, but it is necessary to note that for proponents of a right to humanitarian intervention in emerging customary international law, the Iraqi case is similar to the Liberian one. They are important because states that intervened militarily implied a "humanitarian" justification for intervention. One involves a group of developing countries and the other major Western powers. The reaction of the rest of the community of states was general acquiescence. Protests at the time against the interventions on the grounds that they were unlawful were rare.
Of the interventions of the 1990s, Kosovo posed in the starkest terms the question of legitimacy and authority in the context of evolving state practice and customary international law. The action in Kosovo was justified in humanitarian terms. It was clearly not self-defence, nor was it authorized by the Security Council.
As the Kosovo situation deteriorated in the late 1990s, the Security Council indicated its competence to authorize forcible action in a series of resolutions; but it failed to do so, because of the presumed political opposition of China and Russia. NATO governments bypassed the Security Council, although Resolution 1244 (1999) in effect ratified the outcome of the NATO campaign, and the UN then took over a lead role in a peace building process, leaving military functions in the hands of NATO's Kosovo Force.
The legal justifications for NATO's intervention were not always expressly articulated, but they necessarily rested on some assertion of a right of humanitarian intervention or at least humanitarian "necessity." Although the Security Council did not authorize the bombing, three Chapter VII resolutions were adopted prior to the intervention (numbers 1160, 1199, and 1203). Legally binding on all states, including the FRY, these resolutions determined that the situation in Kosovo was a threat to international peace and security. They also established that the crisis in Kosovo involved serious violations of fundamental rights and an impending human catastrophe well before the NATO action began. But as critics correctly point out, they did not explicitly authorize the use of force.
Of the Western governments involved, the UK took the most consistent and overtly humanitarian position that the NATO action was justified because international law recognizes a right to take military action in a case of overwhelming humanitarian necessity. In October 1998, the Foreign and Commonwealth Office circulated a note among NATO member states arguing that, "Security Council authorization to use force for humanitarian purposes is now widely accepted (Bosnia and Somalia provide firm legal precedents). A UNSCR [UN Security Council resolution] would give a clear legal base for NATO action, as well as being politically desirable." It continued, "but force can also be justified on the grounds of overwhelming humanitarian necessity without a UNSCR."30
When the military action actually started, the UK Permanent Representative to the UN told the Security Council that "[t]he action being taken is legal. It is justified as an exceptional measure to prevent an overwhelming humanitarian catastrophe." He continued, "Every means short of force has been tried to avert this situation. In these circumstances, and as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention is legally justifiable. The force now proposed is directed exclusively to averting a humanitarian catastrophe, and is the minimum judged necessary for that purpose."31
A number of other NATO member states also invoked a right of humanitarian intervention. This is perhaps clearest in Belgium's submissions to the ICJ in the provisional-measures phase of the Case Concerning Legality of Use of Force brought by the FRY against 10 NATO member states in 1998.32
Some states - most notably Russia and China - were sharply critical of the legality of NATO's actions. And there were numerous other loud rejections of the right to humanitarian intervention without Security Council authorization. For example, the representative of India remarked that by ignoring the view of Russia, China, and India, NATO was acting contrary to the wishes of the "representatives of half of humanity."33
Proponents of an emerging custom, however, point to the firm rejection of a Russian proposal submitted to the Security Council on March 26, 1999. The draft resolution that would have condemned the NATO action as a breach of international law was defeated by 12 votes from a wide variety of countries (Argentina, Bahrain, Brazil, Canada, France, Gabon, the Gambia, Malaysia, the Netherlands, Slovenia, the UK, and the US) to 3 (China, Russia, and Namibia).
Since the end of the Cold War, state practice has shifted on issues of intervention and state sovereignty.34 The Western states' reaction to both Iraq and Kosovo suggests a preoccupation with the humanitarian justification for intervention by ad hoc coalitions and regional organizations. African states, which as former colonies have historically been among the most vociferous defenders of absolute state sovereignty, have more recently been at the forefront of challenging traditional prohibitions on the use of force in internal conflicts. The African examples also suggest a growing consensus that state sovereignty is no longer inviolable when there is mass human suffering and democratic or legitimate governments are toppled.
In the mid-1940s, regional organizations were unquestionably subordinated to the authority of the UN Security Council. At the turn of the century, it is less certain whether the text of the Charter remains definitive on the issue of regional authority. Specifically, there are questions as to whether regional enforcement action under all circumstances continues to fall under the subordinate status of the Security Council covered by Article 53 (1).
Some argue that prevention of genocide, crimes against humanity, "ethnic cleansing," and severe patterns of human rights violations have now generated legal authority to engage in intervention independently of the UN system. Having been neither acknowledged nor repudiated by the UN, such a legal right must be regarded as falling into a contested domain. Security Council practice provides a qualified endorsement for these claims of regional authority, especially in the setting of sub-Saharan Africa, but to some extent elsewhere, if the intervention claim is carried out in a context of a human tragedy resulting from a deadly conflict or in relation to a collapsed internal political order. The form of this endorsement, together with the absence of censure for uses of force that would appear to have contravened Charter constraints, has been a retrospective validation, either directly or indirectly, of initiatives of ECOWAS, NATO, and the Organization of American States.
One threshold question is whether regional alliances are subject to the Chapter VIII frame-work governing "Regional Arrangements." The issue relates particularly to the controversy regarding NATO's authority to act without an explicit mandate from the UN Security Council. Since its establishment on April 4, 1949, NATO has contended systematically that it is an organization dedicated to "collective self-defence" and thus not a regional arrangement in the sense intended by the Charter. In fact, Article 5 of the treaty explicitly distances NATO from Chapter VIII of the Charter because the Western Alliance is an entity exclusively concerned with bolstering "the right of individual and collective self-defence."
Those who argue that humanitarian intervention cannot be an application of self-defence would also question whether NATO could expand its scope of activity to encompass a broader range of claims without running afoul of Article 53's constraint on unauthorized regional enforcement. Article 1 of the NATO treaty commits the parties themselves to refrain from the use of force "in any manner inconsistent with the purposes of the UN." By virtue of the 1997 Madrid Declaration and other formal pronouncements of the 1990s, NATO attempted to adapt its mission to the conditions of post-Cold War Europe, stating that "[o]ur aim is to reinforce peace and stability in the Euro-Atlantic area." The Madrid Declaration includes the following suggestive language in paragraph 3: "While maintaining our core function of collective defence, we have adapted our political and military structures to improve our ability to meet the new challenges of regional crisis and conflict management." Paragraph 2 declares, "We are moving towards the realization of our vision of a just and lasting order of peace for Europe as a whole, based on human rights, freedom and democracy."
The constitutional issue posed is whether NATO's redefinition of its mission departs so much from its earlier identity as an organization devoted to Article 51 self-defence that in effect it has become a Chapter VIII regional organization dependent on Security Council authorization whenever it purports to use force to support a claim that is other than collective self-defence. Although the former Yugoslavia is "out of area" and beyond the scope of self-defence, its borders are contiguous with those of NATO countries. Hence, the argument of self-defence is considered plausible by some observers.
In contrast to NATO, where action has been based on a reinterpretation of the existing legal framework, African regional organizations have actually begun to codify a norm of humanitarian intervention.35 In October 1998, in the wake of its experiences in Liberia and Sierra Leone, the ECOWAS heads of government in Abuja adopted and ratified the Frame-work for the Mechanism for Conflict Prevention, Management, Resolution, Peace and Security.
The framework empowers ECOWAS to deploy peacekeeping forces into internal conflict situations that threaten to trigger a humanitarian disaster, pose a serious threat to peace and security in the subregion, and erupt following the overthrow of a democratically elected government. In December 1999, they also adopted a protocol to the framework that recognizes it as binding on all issues related to conflict prevention, management, and resolution.
The principal goal of the Southern African Development Community (SADC) Organ for Politics, Defence, and Security is to protect the people of Southern Africa and safeguard the development of the region against instability arising from the breakdown of law and order, intrastate conflict, and external aggression. It explicitly seeks to encourage the observance of universal human rights, as enumerated in the charters of the OAU and UN. To complement the aims of the Organ, in June 1995 SADC adopted a Protocol on Peace, Security and Conflict Resolution,36 which empowers it to establish peacekeeping forces in certain internal conflict situations. These include large scale violence between sections of the population of a state or between the state and (or) its armed or paramilitary forces and sections of the population, a threat to the legitimate authority of the government (such as a military coup by armed or paramilitary forces), a condition of civil war or insurgency, and any crisis that could threaten the peace and security of other member states.
There are, thus, now two regional organizations that have developed an explicit legal basis for the imposition of the use of force in internal conflicts for humanitarian ends and to restore democratic regimes that have been overthrown. ECOWAS and SADC structures and guiding criteria for intervention are nearly identical. However, from a legal perspective, SADC's security mechanism differs from ECOWAS's in one key respect: in an internal crisis, SADC may only respond to an invitation by a member country. ECOWAS, on the other hand, dispenses with even this limitation. Some would argue that this amounts to the codification of a doctrine of humanitarian intervention; others would suggest that it represents an expanded understanding of the right to self-defence, coupled with members of a regional organization granting "anticipatory" consent.
Regional organizations are becoming more assertive in authorizing their own interventions without prior approval from the Security Council. There is also growing opinion that to be regarded as "legitimate," such interventions need only be preceded by a credible account of an incipient or actual humanitarian catastrophe, demonstrate that reasonable efforts to reach a diplomatic or peaceful resolution have failed, and carry out the operation in accordance with IHL. Such a conception of legitimacy suggests that a literal reading of Chapter VIII of the Charter is no longer an accurate reflection of contemporary international law.
If a right to intervene on humanitarian grounds exists in customary international law (or if it is an emerging norm), it seems limited to cases where three conditions apply: there is widespread loss of life or such loss of life appears imminent; the existence of such a situation has been objectively determined (for example, by a resolution of the Security Council); and the Security Council has not explicitly rejected such an intervention.
There can be little doubt that a "gray sector" exists in international law, neither approving nor disapproving of a use of deadly force to protect people from severe forms of abuse. Russia, China, and many developing countries argue for what might be called a "green-light" interpretation: countries may proceed with military enforcement only if the Security Council has specifically authorized it. The West and some developing countries seem to be arguing for a "red light": countries may proceed unless the Security Council specifically votes to halt military enforcement. The legal status of humanitarian intervention under customary international law and independently of the UN Charter remains contested. A juridical stalemate exists.
Legality and legitimacy are linked but not synonymous. In the blurred area where international custom is evolving or unclear, the notion of legitimacy takes on greater significance. This is presently the case for actions taken both within and outside the framework of the UN Charter.
For many countries, the problem of democratic legitimacy within the Charter regime permeates all aspects of the humanitarian intervention debate. From their perspective, the ever-widening scope of Security Council action is nothing more than an abuse of the constitutional provisions of the UN. These, as well as other sceptics of humanitarian intervention, usually argue that the Security Council represents the distribution of power in 1945, rather than in today's world. It totally excludes from permanent membership major powers from Africa, Latin America, and the Middle East, and it also fails to acknowledge others in Asia and Europe, whose size and influence are comparable to those of other permanent members. Thus, the legitimacy of bona fide decisions is questionable on representational grounds alone.
They point out that the only previous Charter revision took place in 1965 to better reflect rapid decolonization and the vast increase in newly independent countries in the composition of the Security Council. In addition to the need to increase the numbers in the Council again, critics also point out that the veto is a historical relic, shielding human rights violators and guaranteeing impunity for the pursuit of narrow self-interests by the major powers.
At the same time, many developing countries are unwilling to accept as legitimate any intervention not explicitly authorized by the Security Council. The logic is straightforward, if somewhat paradoxical. There is no better or more appropriate body. Council decisions are authoritative because they result from an international political process that, even if flawed, is at least regulated.
In the debate over Kosovo, China and Russia were also reacting to concerns that the US and its close allies were converting the Security Council into an instrument of their foreign polices. The veto power was seen as a vital protection from other powerful states and as a means to neutralize Western geopolitical machinations. States that insist on maintaining the right to the veto are in a poor position to claim the need to act outside of the Charter framework when paralysis results from another permanent member's veto. The evasion of veto power in the case of Kosovo was interpreted as proof of efforts to undermine this legitimate sphere of UN authority. Suggestions have since surfaced that the permanent members should consider a pledge not to veto any intervention for humanitarian purposes when their own vital interests are not directly threatened. It seems aberrant that a veto could override the claims of the rest of humanity.37
Avoiding the Security Council poses one set of problems, but assertive leadership by the major powers poses others. Hence, in relation to the Gulf War and with respect to the imposition and retention of sanctions against Libya and Iraq, many developing countries have criticized efforts by Western states, and especially by the US, to widen the scope of acceptable multilateral authority and legitimacy. In effect, such critics have argued that the Charter conception of UN authority has been subjected to "geopolitical hijacking" and that such practice has imperiled the legitimate sovereign rights of many countries.
Legitimacy is also an increasingly important notion for those who accept that in certain circumstances humanitarian interventions should be undertaken even in the absence of clear Security Council authorization. Within segments of global civil society and for a significant number of governments, there exists a "legal" basis for intervention provided the facts of abuse are authenticated. If a human catastrophe related to a deadly conflict occurs, there is need to act whether or not the Security Council is seized by a crisis. Much of the debate in the West focuses on the difficulties of securing the necessary authority to undertake interventions and on operational shortcomings within the international system.
In the absence of a Council authorization to use force, observers have identified additional factors that could affect the perceived legitimacy of an intervention in response to situations that shock the conscience. Two possibilities were discussed earlier, namely, the Council's authorizing Chapter VII action, though not the use of force; and a two-thirds majority in the General Assembly. Other ideas have emerged that might be helpful in enhancing legitimacy, if not the legality, of an enforcement action. For instance, a strong majority on a Council vote, even with a veto, could suggest broad approval for enforcement action. In fact, even securing a solid majority in the Council or the General Assembly would indicate a certain degree of legitimacy. To return to the earlier image, these kinds of approval might provide an "amber light." Moreover, a truly cosmopolitan coalition of troop contributors could also provide substantial evidence of a widespread commitment among countries that are sufficiently persuaded by the justness of their cause to commit soldiers and risk international criticism.
Two other suggestions for enhancing legitimacy relate to independent judgements about the feasibility of humanitarian intervention claims, with or without Security Council approval. Some commentators have suggested that the ICJ review all cases of intervention as a way of checking abuse.38 Most observers are doubtful about the utility of such a procedure because of the protracted time necessary for deliberations and because compulsory jurisdiction is lacking for most countries for this type of issue.39 A second suggestion is that independent verification could be helpful in determining legitimacy. The possibility for fact-finding missions exists within the Geneva Conventions; and while this provision entered into force in the early 1990s, it has not yet been used. Alternatives include fact-finding authorized by the Security Council or the UN Secretary-General, or the establishment of an independent expert panel composed of eminent persons.
In the face of legal ambiguity, lists of possible thresholds and criteria assume increasing importance. The establishment of a set of criteria has been offered as one way to mitigate the potential for abuse. While not legally binding, they could nevertheless provide a benchmark against which the legitimacy of an intervention could be measured. As mentioned above, such lists of principles commonly reflect the essence of just war doctrine.
Developing criteria for humanitarian intervention is by no means a new idea. An extended effort in the early 1970s by the International Law Association was abandoned because of the dim prospects for securing consensus.40 Yet, as discussed earlier in the volume, there remains remarkable consistency among the proposed criteria. The obvious difficulties in securing consensus aside, many commentators still oppose the codification of such criteria. They favour a more ad hoc and common-law approach because criteria could do more to inhibit than foster intervention when it is warranted; the "checklist" could provide a rationale for political leaders not wanting to assume any risk.
Two final factors that have a profound effect on the legitimacy of an intervention are the manner in which it is conducted and the effectiveness and sustainability of protection. Even those who argue that a Security Council decision is a prerequisite for justified humanitarian intervention accept that such an authorization could be undermined by the actual conduct of an operation. In such circumstances, a legal intervention could become illegitimate.
The paramount consideration is the ultimate efficacy of humanitarian intervention. Does it work, or does it actually give rise to worse problems than it solves? One line of argument discounts the propriety of military intervention on humanitarian grounds because it is likely to lead to further loss of life. The range of negative consequences extends from facilitating flight by forced migrants to sustaining war economies and making post-conflict peace building a distant dream. The result has been a serious questioning of the use of military force to secure humanitarian objectives.41
Others argue that the measure of success is simply lives saved, in both the short and the longer term. While military intervention is inevitably a blunt instrument, they claim that the safety of the population in Kosovo is more secure today than if Milosevic had remained in control of the territory. They would also argue that almost any intervention force would have had a positive impact for the Tutsi population in Rwanda.
While counterfactual arguments are notoriously unreliable, many argue that it is unfair to not at least ask the question and attempt a calculation for a proverbial bottom line. Despite mistakes and shortcomings, were populations at risk better off than they would have been in the absence of intervention?
The following analysis explores the operational challenges of military intervention in humanitarian crises. The record of the 1990s indicates few clear principles about the use of deadly force and provides only limited evidence of the ability of the military to provide physical protection to civilians in deadly conflicts or to compel warring factions to stop fighting. Modifying peacekeeping, however radically, appears to many specialists as a highly inadequate response that would be incapable of providing protection to targeted populations in extreme circumstances. A clear operational concept is required for legitimate, multinational intervention to end large scale loss of life and gross abuses of human rights by both governments and armed oppositions. Such a shift in orientation, however, has significant implications for the tasks of intervening forces, and it would require a form of intervention that has hitherto been rejected in the evolving military intervention doctrine.1
Some may question the narrow focus on the military component of multilateral and United Nations (UN) missions. It has become popular for analysts to argue that the military is but one element of an intervention or peace support operation, and then quickly to examine debates about refining the humanitarian and developmental components. Yet, despite the general consensus that the military's principal value-added is in providing a secure environment, the military - or, perhaps more accurately, their political masters - have tended to be unwilling to employ deadly force to protect civilians. According to an Organization for Economic Co-operation and Development (OECD) report, the growing involvement of military forces in humanitarian operations has created the "strange situation of the military engaging in all the tasks but that task for which they are most directly trained."2
The lack of attention to the peculiar operational dimensions of humanitarian intervention is also apparent in the analytical literature. Adam Roberts, in one of the few sustained dedicated studies on the subject, argues that "there has been remarkably little serious thinking about military protection" for civilians and aid workers and that the "failure to develop serious policies regarding the security of humanitarian action, and of the affected peoples and areas, has been the principal cause of the setbacks of humanitarian action in the 1990s."3
There have been efforts by national militaries to develop doctrine and procedures related to this area; and where possible, citations to the existing literature are included. But based on an examination of dozens of the most widely cited documents, it appears that assessments of these dimensions remain inadequate.
The aim of this essay, then, is to identify the operational challenges in applying deadly military force for humanitarian ends. Unlike the review of intervention earlier in the volume, the cases referred to here are not limited to nonconsensual military operations. Whether they were mandated under Chapter VI or Chapter VII of the UN Charter, all suffered at one stage or another from an absence or withdrawal of consent by belligerents and can thus provide useful insights for future efforts to operationalize the responsibility to protect vulnerable civilian populations.
At the beginning of the 1990s, international interventions were characterized by extremes in the use of force. There were either high-intensity enforcement operations (for example, the Gulf War) or traditional UN peacekeeping, reliant on the consent of belligerents (quintessentially on the Golan Heights or in the Sinai). As peace missions were deployed within states in internal conflicts, a range of tasks between these two extremes reflected a "second generation" of international military deployments.4 These middle level tasks characterize the bulk of military activity in what became known in British and North Atlantic Treaty Organization (NATO) doctrine as "peace support operations" and in the United States (US) doctrine as "peace operations."5
During the past decade, the UN was called on to oversee the implementation of a number of detailed peace agreements, which required its field missions to engage in a wide variety of nonmilitary functions. The tasks of intervening agents typically included the full range of measures stored in UN Secretary-General Boutros Boutros-Ghali's conflict resolution "toolbox" and outlined in the much-discussed An Agenda for Peace.6 These tasks went far beyond observing, monitoring, and reporting on cease-fire agreements or acting as an interpositional force, the traditional bill of fare of peacekeeping operations. Actual mission mandates during the 1990s covered such ambitious projects as running transitional civil administrations, disarming and demobilizing warring factions, transforming regular and irregular forces into a unified army, reorganizing and retraining the police, reestablishing or reforming the judiciary, facilitating the delivery of humanitarian assistance, and helping to organize national elections.
Where civilians were at grave risk, the Security Council has also given increased attention to measures designed explicitly for their protection - most notably through resolutions mandating the creation of "security zones," "safe havens," or "protected areas." By the end of the decade, explicit reference to the protection of civilians emerged in Security Council resolutions. Through its unanimous adoption of Resolution 1296 on April 19, 2000, the Security Council placed the protection of civilians in armed conflict at the heart of the UN's future agenda. The Security Council had thus reached the point where it was prepared to invoke Chapter VII in authorizing UN military forces to protect civilians at risk in deadly conflicts.
Four conceptually distinct objectives for which military forces might be deployed in response to humanitarian crises are set out in Figure 8.1. They are to monitor compliance, compel compliance, provide protection, and defeat opponents.
The two ends of the spectrum are relatively well understood. On the left is traditional peacekeeping, based on the principles of consent, neutrality, and the nonuse of force, except in self-defence. This form of military deployment is designed to create and maintain conditions in which political negotiations can proceed - in effect, to monitor compliance with an agreement that belligerents have committed themselves to implement. It involves patrolling buffer zones between hostile parties, monitoring cease-fires, and helping to defuse local conflicts. Examples of traditional peacekeeping include unarmed military observers in Western Sahara and armed infantry-based forces in Cyprus. On the right of the spectrum lies the equally well-understood concept of warfighting. Here the objective is to defeat a clearly defined adversary, and it is undertaken by fully combat-capable troops. NATO's air campaign in Kosovo falls under this category, as does the defeat of genocidal regimes in Cambodia and Uganda.
Activities falling between these two extremes have, over the course of the 1990s, become the most common form of international military operations. Here it is useful to distinguish between two related but distinct sets of objectives: compelling compliance and providing protection. The first of these, commonly referred to as "peace enforcement," revolves around the search for comprehensive political settlements leading to sustainable peace. It involves traditional peacekeeping tasks, such as monitoring cease-fires, but it also involves complex tasks for which ultimate success requires a willingness and a capacity to use force. These include the "cantonment and demobilization of soldiers; the destruction of weapons; the formation and training of new armed forces; [and] monitoring existing police forces and forming new ones."7 Examples of this form of military operation include the Implementation Force (IFOR) and the Stabilization Force (SFOR) organized by NATO in Bosnia, the US-led Multinational Force (MNF) in Haiti, and the UN Mission in Sierra Leone (UNAMSIL). A variant on this approach is the use of force to compel parties to the negotiating table. Examples here include the NATO air strikes preceding the signing of the Dayton agreement on Bosnia, and the early phase of intervention in Liberia, where the Economic Community of West African States (ECOWAS) deployed the ECOWAS Cease-fire Monitoring Group (ECOMOG), which fought Charles Taylor's rebels to secure a cease-fire and a secure environment to establish an interim government.
The other form of enforcement action consists of providing protection for civilians backed by the threat or use of military force. While "coercive protection" can take a variety of forms, the most common are the maintenance of humanitarian corridors, the protection of aid convoys, and the creation of safe havens or protected areas. Prominent examples include the no-fly zone in northern Iraq and the safe areas of Bosnia. A particularly important dimension of this kind of operation is the force posture of intervening troops. The previous three forms of military operations all have military forces oriented in relation to other military forces. Peacekeeping involves the monitoring of military cease-fires or the interposition of forces between armed parties to a conflict; compelling compliance involves the potential use of force against conflicting parties or spoilers; and warfighting involves combat against designated opponents. In contrast to these approaches, the provision of protection requires the interposition of forces between potential attackers (armies, militias, and gangs) and civilians. This is a contemporary task that is central to the challenging responsibility to protect civilians.
Compelling compliance and providing protection are often employed in the same mission. Where the political will exists to use military force to pressure the parties toward peace, there is usually also the will to use force to provide some degree of protection for civilians. In other cases, where compelling compliance is deemed unwise or too costly - for instance, the removal of Saddam Hussein from Baghdad to ensure the safety of the Kurds in the north - coercive protection measures may be employed on their own.
The conceptual distinctions in Figure 8.1 rarely match the complexities on the ground. As the considerable areas within the overlapping circles imply, many missions operate near the margins of these categories, often moving back and forth from one to the other. This makes the fundamental distinctions between the categories of the use of force and an impartial force posture all the more important. The principal distinction between peacekeeping and enforcement operations is the use of deadly force beyond self-defence. In contrast with the past, peacekeepers are now commonly armed and in many cases are deployed with some degree of combat equipment. But their rules of engagement (ROEs) invariably require that they be shot at before they can shoot back. In the case of enforcement action, ROEs explicitly allow for the use of force to lay the groundwork for a political settlement or to provide protection. The Australian-led International Force in East Timor (INTERFET) was authorized to do the former; the patrolling of the no-fly zone in northern Iraq clearly involved the latter.
Another fundamental distinction revolves around the complex notion of impartiality. Although sometimes thought to imply treating all sides alike, there is a growing appreciation that impartiality differs from neutrality. Impartiality is the even-handed application of mission mandates and international law. Hence, if a mission begins with the consent of the parties and then this is lost, outside military forces can employ violence against backsliding parties without the loss of impartiality. The report from the Panel on UN Peace Operations endorsed this approach when it argued that, "[I]mpartiality is not the same as neutrality or equal treatment of all parties in all cases for all time, which can amount to a policy of appeasement. In some cases, local parties consist not of moral equals but of obvious aggressors and victims, and peacekeepers may not only be operationally justified in using force but morally compelled to do so."8
When intervening forces determine that one of the factions is principally to blame, impartiality is inapplicable and the mission enters the realm of warfighting. This is clearly the case when the objective is to dislodge a genocidal regime. Other examples include NATO's bombing of Kosovo and the period during the second UN Operation in Somalia (UNOSOM II) when the US forces attempted to forcibly capture General Mohammed Farah Aideed. Important though the distinction between the partial and impartial use of force is to intervening forces, they share some of the same operational challenges. Belligerents invariably interpret the enforcement of mandates against them as practical actions in support of their opponents. Perception by warring parties may be quite distinct from the intentions of outside military forces, but these perceptions are frequently what counts on the ground.
As is evidenced by the robust interventions of the 1990s, the first half of the decade was characterized by the shift from peacekeeping to enforcement; and the latter half by the growing realization that there were circumstances under which even the impartial use of force was inadequate. A senior UN official, commenting on the publication of the Secretary-General's report on Srebrenica, admitted that the UN's failure was "in part rooted in a philosophy of neutrality and non-violence wholly unsuited to the conflict in Bosnia." He suggested that the report "breaks new ground by effectively damning the diplomatic nicety of trying to remain neutral and above the fray in civil conflict."9
A further conceptual point, before turning to explore the specific operational challenges of enforcement actions, involves the varying degree of consent across these various modes of operation. Although widely regarded as the fundamental difference between peacekeeping and peace enforcement, consent is rarely absolute and often evaporates. There are both quantitative and qualitative dimensions to the nature of consent.10 Agreements may be reached on issues of fundamental importance to central actors, or on more peripheral matters. Once reached, however, agreements are notoriously vulnerable to a variety of interpretations.
Ultimately, consent is something that is given and thus may also be withdrawn when it seems advantageous to do so. This is not a new phenomenon, as the Egyptian withdrawal of consent for the presence of the first UN Emergency Force and the outbreak of war in 1967 illustrates. Much is made about consent in the 1990s, but once again history is important. However, the record of international military operations during the 1990s proves this point dramatically. Hence, it is unwise to count on the continuation of consent, particularly in collapsed states with no functional government structures and few factional leaders who respect any concept of the rule of law.11 In reference to future operations, Kofi Annan commented while he was still head of the Department of Peacekeeping Operations (DPKO) that "the old dictum of 'consent of the parties' will be neither right [nor] wrong; it will be, quite simply, irrelevant."12
Having reviewed the various modes of military operations, the specific demands of effective enforcement action will now be discussed. In 2000, the Panel on UN Peace Operations reviewed the operational challenges facing UN missions. For the most part, however, that panel did not focus on the more robust use of military force. Their report confirmed that "the United Nations does not wage war. Where enforcement action is required, it has consistently been entrusted to coalitions of willing states."13 At the same time, UN blue helmets are currently attempting to implement mandates with considerable enforcement dimensions in Sierra Leone and East Timor.
Dag Hammarskjöld once commented that, "Peacekeeping is not a job for soldiers, but only a soldier can do it." Enforcement action, whether to compel compliance or to provide protection, is a job for soldiers. This essay discusses enforcement objectives and strategies, the military dimensions of enforcement action, and the specific challenges of undertaking coercive protection and concludes with the tasks required to sustain both peace and protection.
Virtually every report on traditional peacekeeping or military enforcement operations contains a straightforward recommendation to have clear and credible objectives with matching mandates and resources. This is easier to recommend than to follow. A central problem is that multilateral decision making bodies generally require consensus to succeed. Vagueness and incrementalism, rather than specificity and decisiveness, are inevitable outcomes of multilateral deliberations during which the limits and boundaries of intervention have become significantly obscured in order to secure agreement on deploying forces at all.
With regard to peace making initiatives, the UN Secretary-General has warned that "the failure of the major external actors to maintain a common political approach to an erupting or ongoing crisis is one of the principal impediments to progress towards a solution."14 Decisions to intervene are usually based more on emergency impulses than strategic analyses of how to transform the target arena. Many interventions were triggered throughout the 1990s by an imperative to "do something." And this lack of strategic vision is usually disastrous. This was certainly the case with the UN Protection Force (UNPROFOR) in the former Yugoslavia because a large scale military force configured for peacekeeping was sent into an environment where all too often there was no peace to keep.15 This lack of direction, despite the proliferation of resolutions, reflected the reality of political compromises and divisions among members of the Council.
However well or ill-defined the end-state of intervention, political vision should encompass what it will take to get there - conceptually as well as operationally. Without such calculations from the outset, there is little chance of mustering sufficient "political will" to see the intervention through to a successful conclusion. All too often, this vision has been limited to a commitment to verify, monitor, and report on circumstances in a mission area. Comprehensive and multidimensional peace processes militate against a stricter focus on the art of the possible during cease-fire and peace negotiations. Considerable issues of prestige are at stake in an intervention, which translates into reluctance among potential contributors to support a coalition that is tasked with a challenging mandate, especially where vital interests are not threatened.
Although enforcement is a task for combat troops and not peacekeepers, the requirement for enforcement action often arises where peacekeepers have already been deployed. The need to be adaptable, have contingency plans and options, and be able to scale-up or scale-down, depending on challenges, should be obvious. Although this is standard for national military operations, it is not automatic within the UN. Financial allocations for UN operations (usually for only six months) suggest the tentative nature of national commitments to international operations. And countries that have approved the use of their soldiers as blue helmets cannot be assumed in advance to endorse the change of helmet colour to the olive green of warfighters.
Furthermore, the actual pattern of deployment of forces for peacekeeping may be counterproductive for enforcement operations. For instance, peacekeeping's success often relies on being highly visible in local communities and being exposed in ways that would be inappropriate if deadly force is employed and intervening soldiers become targets.16 Hence, the deployment of the Dutch contingent around Srebrenica was patterned on successful interposition and observation missions elsewhere, but it was inappropriate to ensure the safety of the inhabitants or to prevent Dutch soldiers from being chained to bridges. Similarly, painting armoured personnel carriers white with black lettering may be appropriate for peacekeeping missions but obviously increases vulnerability.
One key problem with past UN operations has been the desire of governments, and the Secretariat, to get by on the cheap. Often, the UN Secretary-General has been asked not only to report on a given armed conflict, but also to formulate a concept of operations and to consult with potential troop contributors before the Security Council has agreed to a resolution authorizing the deployment of an intervention force. It is hard enough to get member states to commit troops and resources in the first place, and so best - rather than worst - case scenarios are usually the preferred planning device. In many cases, events on the ground quickly demonstrate the flaws in these assumptions, which are further exacerbated by media reporting and declining resolve among intervening states. According to the Panel on UN Peace Operations, this has led the Secretariat to tailor the proposed concept of operations and force level to fit within the perceived threshold of political will that the Council can muster.17
Realistic assessments of requirements - including a capacity to respond - consistently get lost in the political process. The ongoing debate about sending soldiers even to protect monitors in the Democratic Republic of the Congo is a case in point. "Wishful thinking" would be a generous characterization of the prospects of 5,000 lightly armed UN troops in a country that spans much of the lower part of the continent and has forces from six neighbouring countries mixed with the national army and numerous armed guerrilla movements. A genuine peace enforcement effort might require tens of thousands of troops. Because peacekeeping undoubtedly may prove to be inadequate or because a situation may deteriorate despite the presence of blue helmets, "the Secretariat must not apply best-case planning assumptions to situations where the local actors have historically exhibited worst-case behaviour."18
Deploying troops based on best case scenarios is not simply foolhardy or dangerous, it may even be counterproductive. In the Balkans and elsewhere, spoilers have exploited disunity among troop-contributing countries to neutralize the international presence or cause its withdrawal. At times, the weakness of the UN missions and the failure to establish authority and to provide a secure environment have led to the deployment of parallel enforcement missions in the middle of a process, such as the Unified Task Force's (UNITAF's) arrival amid UNOSOM I in Somalia, NATO's insertion of a rapid-reaction and bombing capacity amid UNPROFOR in the former Yugoslavia, and more recently the British Army in UNAMSIL in Sierra Leone.
It has been widely advocated that intervention mandates should be converted into comprehensive campaign plans, supported by appropriate structures and the means for their implementation. Most UN peace enforcement operations are complex affairs, with a wide range of actors, including civilian administrators, international civilian police, humanitarian and development personnel, and nongovernmental organizations (NGOs). Comprehensive planning and coordination would require inputs from all the key implementing actors during the planning phase to enhance not only the overall concept of operations but also the commitment to effective implementation of those involved in the process. In reality, however, components of interventions of the 1990s have been planned in isolation. For example, during 1993-1994, mandates for conflict resolution in the Balkans were repeatedly negotiated and renegotiated within the Security Council, without a carefully developed resourcing plan. What The Economist ridiculed as "the confetti of resolutions" accurately summarized the discrepancy.19
Once an intervention is under way, there has been a tendency to adjust the vision (in terms of both scope and depth) through dialogue with a variety of international and local constituents. Some interpret this as a perfectly reasonable recognition of the "multifunctionality" of interventions and the self-evident need for post-conflict peace building. Detractors, however, are more likely to refer to the phenomenon as incrementalism and "mission creep."20
There are several dimensions to mission creep. Many military operations begin with fairly simple and straightforward mandates, including "benign" humanitarian ones, only to have them expanded to the pursuit of military, political, and developmental objectives as operational circumstances change or as new peace agreements and deals are struck. Mandates are inevitably adjusted in reaction to new demands during the course of an intervention. While the initial mandate may reflect a preoccupation with humanitarian actions, political and security concerns often predominate on the ground.
Furthermore, the more limited the initial vision in relation to the real problems at hand, the more likely that mission creep will take place. Somalia is a clear example where the initial response to insecurity and famine bore no relationship to longer term requirements. The follow-on UN operation (that is, UNOSOM II) included ambitious security and nation-building tasks but without commensurate means, military or otherwise, to realize them.
In traditional warfighting, military decision makers are expected to plan for the development of virtually any contingency; in international enforcement operations, they and their political masters complain or express surprise that circumstances change. Yet, mission creep has been the rule, not the exception, in the international military operations of the 1990s.
Clarity of purpose is both a prerequisite for mission success and an essential aid in judging where and when to intervene. It is also incompatible with the insistence by intervening countries and agencies to have an "exit strategy" implicitly linked to a fixed end-date. Human catastrophes, let alone war-to-peace transitions, involve long time horizons; and the desired end-states are redefined continually through active local debates, developments on the ground, and international political developments. The results are almost always different from those envisaged at the outset. This uncertainty is what drives many intervening countries and their militaries to define an exit strategy in terms of a target that is easiest to identify, namely an arbitrary date. This amounts to an exit "timetable," rather than a "strategy."
What is crucially important is having a clearly defined entry strategy that specifies the desired results, so that, once they are realized, the exit is a byproduct of success and not merely the elapse of a fixed time period. This requires detailed planning prior to military engagement, as well as the flexibility to adapt to changing circumstances in the operational theatre and internationally.
Ideally, the process of making a decision to intervene, the formulation of the mandate for the intervening agent (or combination of agents), and the allocation of structures and means for implementation should be related. For enforcement efforts, this procedure has rarely characterized the interactions between the Security Council, the Secretariat, and troop-contributing countries. It has somewhat more often characterized interactions within coalitions of the willing. However, here, too, harmonization involves welding considerably more complex interpretations of the facts on the ground and domestic interests than within a single government.
The common wisdom that has emerged from the past decade is that an effective intervention force should be credible and perceived as such. The credibility of operations, in turn, has depended on the belligerents' assessment of a force's capability to accomplish the mission.21 Yet, Security Council resolutions have been strong on condemnation but weak in terms of instructions for intervening forces to deal with noncompliance by belligerents. The timorous approach of contingents deployed in the first crucial months of an intervention, more often than not, has damaged the credibility and future of UN operations and those undertaken by regional organizations. Examples range from Liberia and Somalia to Bosnia and Herzegovina.
UN-commanded operations have frequently been limited by national conceptions of command and control at the operational and tactical levels.22 And most coalitions of the willing have been unwilling to unleash fully their warfighting capacities. Where contributions to international peace and security have required troop-contributors to pay a heavy price, multilateralism has given way to the more salient domestic political interests that usually dictate caution and risk-aversion.
Modalities for the proactive use of force have been determined more by military expediency than any sense of responsibility to protect humanitarian interests. In Bosnia, for ex-ample, those advocating military intervention typically used feasibility - meaning air strikes without casualties - as their prime argument, not moral or legal obligations. They rarely admitted the considerable risks associated with effective intervention on the ground. The real question, ultimately, was whether the West was willing to risk the lives of its soldiers in order to stop war crimes, crimes against humanity, human rights abuse, and forced migration.23
Shortcomings in strategy and objectives are even more apparent when it comes to coercive protection. Consider, for example, the creation of the safe areas in Bosnia in April 1992. The idea, first introduced by the president of the International Committee of the Red Cross in the summer of 1991, was to protect threatened communities in their place of residence in order to prevent armed attacks, forced population movements, harassment, and arbitrary arrests, and killings. The UN Secretary-General estimated that some 35,000 troops would be required for the protection of safe areas in Bosnia, but states approved one-fifth of that number, with results that are now infamous.24 Far better, according to many commentators, to do nothing at all than to promise "protection" that lures victims to their death.
The Security Council has now reached the point that it is prepared explicitly to authorize UN military forces to protect civilians at risk in deadly conflicts. The first such resolution was adopted in February 2000 with reference to Sierra Leone, when the Council voted unanimously to approve the Secretary-General's plans for strengthening UNAMSIL. The resolution not only raised the maximum authorized strength from 6,000 to 11,000 in Sierra Leone, it also authorized the mission "to take the necessary action to afford protection to civilians under imminent threat of physical violence." Similarly, in the midst of a shaky cease-fire and highly volatile security environment in the Democratic Republic of the Congo, the Council mandated to "take the necessary action, in the areas of its deployment and as it deems within its capabilities, to protect civilians under imminent threat of physical violence."25
While these authorizations indicate that intervening forces have the right to use force to protect civilians, it is also clear that they are under no obligation to do so. And although broadening mandates and developing more robust ROEs have been welcomed in many quarters, some have argued that asking more of troops already underequipped for their existing tasks is a recipe for disaster. Indeed, the Panel on UN Peace Operations, while supporting the objective of protecting civilians, sounded a clear note of caution:
| [T]he Panel is concerned about the credibility and achievability of a blanket mandate in this area. There are hundreds of thousands of civilians in current United Nations mission areas who are exposed to potential risk of violence, and United Nations forces currently deployed could not protect more than a small fraction of them even if directed to do so . If an operation is given a mandate to protect civilians, therefore, it also must be given the specific resources needed to carry out that mandate. |
This is wise counsel, for the record of implementation reveals that force and contingent commanders have often felt duty bound mainly to protect their own forces - at the expense of broader mission mandates and to the detriment of the safety of civilians. ROEs are critical to protecting populations at risk. They are the directions guiding the application of the use of force by soldiers in the theatre of operations.26 The use of only minimal force in self-defence that characterizes traditional peacekeeping is clearly inappropriate for enforcers. Arresting common criminals and indicted war criminals, halting abuse, and deterring would-be killers and thugs require far more robust ROEs. The security of soldiers, aid workers, and the target population would improve if strong signals were sent to errant leaders and their supporters that mistreatment of local populations or foreign personnel would be met with deadly force. More precise ROEs for a multilateral intervention would help diminish the requirement for individual countries to issue individual clarifications for every item or exception - a serious impediment to effective joint operations.
As obvious as it sounds, well-trained and well-equipped troops are even more necessary for enforcement actions than for traditional peacekeeping. Sending poorly trained Bangladeshi troops to UNPROFOR, with inappropriate or no gear, was obviously misguided. At the same time, even the better-equipped Dutch were inappropriately deployed and supported when Srebrenica was overrun.
When Major General Romeo Dallaire requested 5,000 soldiers to help halt the genocide in Rwanda, he was not calling for seven different battalions from Bangladesh, The Netherlands, and five other countries. Setting aside for a moment the debate about the exact numbers that would have been required to make a difference, what he sought was a well-trained and well-equipped brigade. This raises the question of whether the military requirements for certain enforcement tasks would not be more readily available and reliable with a large military deployment by essentially a single state, rather than a multinational coalition. Although the approach would be potentially more open to abuse, there are cases that undoubtedly support this position, including India in East Pakistan, Tanzania in Uganda, and Vietnam in Cambodia during the 1970s; and the US in Haiti, the French in Rwanda, and the United Kingdom (UK) in Sierra Leone during the 1990s.
At the very least, it means that a multinational unit of this size should have had the kind of discipline, interoperability of first-rate equipment, and communications and transport capabilities that are now only available in NATO. Given the reductions in Western militaries since the end of the Cold War in most countries, the entire range of blue- to green-helmeted capacities necessary in April 1994 are not widely available now. Furthermore, the reluctance to sustain fatalities in humanitarian interventions complicated matters. Domestic spending priorities, the general expansion of peace operations, and the debacle in Somalia led to paralysis in the face of Rwanda's bloodshed in 1994.
The contributions of UN peacekeepers from the South have increased markedly as numbers from traditional Western troop-contributing countries have fallen. Although it is a politically sensitive subject, it is generally accepted that the effectiveness of troops from developing countries will need to be markedly improved if they are to play a prominent role in successful enforcement missions. Progress on this front is being made. There are also a number of initiatives to improve capacity, including the US effort to equip and train the African Crisis Response Initiative, the French Reinforcement of Capabilities of African Missions of Peacekeeping, and the British Military Advisory and Training Teams.
The challenges in this regard are clear; the question is whether the future will look any different from the past. The Report of the Panel on United Nations Peace Operations is worth citing at length:
| [T]he Secretary-General finds himself in an untenable position. He is given a Security Council resolution specifying troop levels on paper, but without knowing whether he will be given the troops to put on the ground. The troops that eventually arrive in theatre may still be underequipped: Some countries have provided soldiers without rifles, or with rifles but no helmets, or with helmets but no flak jackets, or with no organic transport capability (trucks or troops carriers). Troops may be untrained in peacekeeping operations, and in any case the various contingents in an operation are unlikely to have trained or worked together before. Some units may have no personnel who can speak the mission language. Even if language is not a problem, they may lack common operating procedures and have differing interpretations of key elements of command and control and of the mission's rules of engagement, and may have differing expectations about mission requirements for the use of force. This must stop.27 |
Not only do troops need to be well trained and well equipped, they also need to be in place quickly. The need for rapid deployment was central to the debate within the UN in the middle of the 1990s. Canada took a lead in discussions, arguing that the "critical lesson of the Rwandan experience is that modest but timely measures can make the difference between a situation which is stable or contained and one which spirals out of control."28 Other like-minded governments joined the chorus - Denmark, The Netherlands, and Sweden also issued reports about the necessity for the UN to be in a position to have a speedy capacity to execute interventions.
Little concrete headway has been made since. A Rapidly Deployable Mission Headquarters was established at UN headquarters, but at the same time DPKO was stripped of gratis military personnel from Western countries as a result of a disagreement with developing countries over the geographical balance of military staff in New York. In the end, some would argue that DPKO is less capable now than it was some years ago.
At the same time, the standard by which rapid deployment is measured has itself deteriorated. The earliest UN operations deployed far more rapidly than contemporary ones. In the Congo, there was a mutiny against Belgian officers on July 5, 1960; and five days later, Belgium intervened to protect its nationals. The Security Council met on July 14, and the first contingents of UN troops arrived the next day; 3,500 UN troops were on the ground by July 17. Similarly for the Suez crisis, offers of assistance had been received before a General Assembly Special Session had actually mandated the peacekeeping force; the first troops were on the ground in 8 days, having been delayed somewhat by Egyptian concerns about the nature and composition of the force. Within 3 weeks, more than 2,500 UN troops were in place; and in 10 weeks, the force had reached its full strength of 6,000 troops drawn from 10 countries.29
In contrast, an assessment by the Carnegie Commission on Preventing Deadly Conflict claimed a two-week "window of opportunity" existed in mid-April, during which time a preventive deployment could have been successful in halting Rwanda's genocide.30 However, the most detailed estimate, to date, about the time necessary for even a US unilateral effort in Rwanda was more than a month.31
A subject that has received relatively little attention is military conduct during humanitarian interventions. There is widespread agreement that intervening forces are subject to the rules of international humanitarian law (IHL), requiring that the use of force be discriminate and proportionate, that some types of weapons not be used, and that prisoners be treated properly.
An illustration of this principle in operation is the inquiry by the International Criminal Tribunal for the Former Yugoslavia into the conduct of NATO operations in 1999. The prosecutor decided that there was no basis on which to bring charges against anyone connected with that operation.32 But the fact that the inquiry took place at all illustrates a concern about the legality of conduct by intervening forces. In fact, there is growing acceptance that the conduct of forces may have a decisive impact on the perceived legitimacy of an enforcement action.33 As a result, some commentators have suggested that intervening armies and agencies may be subject to even more stringent standards than IHL,34 though there does not seem to be support for this view in state practice.
Until recently, there was some question as to whether IHL was applicable to UN forces. Given that UN soldiers were confined to the role of traditional peacekeepers, this ambiguity was hard for many to understand. The issue was clarified, however, in a memorandum from the UN Secretary-General on August 12, 1999, explicitly extending the provisions of IHL to all UN personnel engaged in "enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence."35 Whether the intervening forces have the legal status of "combatants" or not, it is now clear that these laws apply.
Where these norms are violated, however, there is still the challenge of enforcement. While the ad hoc tribunals - and, in the future, the International Criminal Court (ICC) - may be called on to assess the legality of military conduct, there is no common disciplinary procedure for troops that violate international norms. To date, it has been left to contributing nations to prosecute their own soldiers. While this can be done in good faith, it should be noted that if disciplinary action is not carried through, it can discredit an intervening force in the eyes of a local population and undermine civilian attempts to establish the rule of law.
During the Cold War, there was a fair understanding of a simple division of labour whereby the UN mounted peace operations and observer missions, while regional organizations concentrated on political and diplomatic measures. The UN Transitional Authority in Cambodia, in conjunction with efforts by the Association of Southeast Asian Nations, is one example; as are a variety of UN operations in Central America, with efforts by the Contadora Group and other subregional diplomatic efforts. International enforcement simply was not an option, but this changed in the 1990s. A proliferation of devastating internal conflicts led to involvement by a number of diverse actors (governmental, intergovernmental, and nongovernmental) in attempts to resolve or ameliorate deadly conflicts at all levels.
The 1990s also marked a significant departure in humanitarian action. Warfighters and civilian humanitarians were working side by side to bring succour and protection to populations at risk. The coming together of the more hierarchical and disciplined military and the more horizontal humanitarian cultures was not without its problems. The mantra resulting from recent complex emergencies is for improved collaboration and perhaps integration among the "intervention trio" of the military, political-diplomatic elements, and humanitarian agencies.
Military decision making is based on clear and unequivocal communications and chains of command. Even for peacekeeping forces, the chain of command has been problematic, with the force commander rarely being totally in control of the behaviour of national contingents. Especially when dangerous conditions prevail, the commanders of national battalions contact their capitals before responding to so-called orders from the UN commander in the field or the Secretary-General in New York.
The requirement for clear command and control is unquestionably more important for enforcement than peacekeeping. Unity of purpose is essential when insecurity is high. Perhaps the clearest successful cases in this regard were the US leadership of coalitions of the willing in the Gulf War, Somalia, and Haiti or NATO's spearheading security efforts in post-Dayton Bosnia and Herzegovina and Kosovo. Politically the most disastrous illustration of problems resulting from a muddled chain of command occurred during the UNOSOM II operation, when the US contingent (which actually remained under American command and control) was ambushed in Mogadishu. The equivalent for air power was the dual-key operation in Bosnia, where the force commander needed the approval of the UN Special Representative Yasushi Akashi, which seldom came, in order to launch aerial attacks.
Ultimately, coordination is a topic that is a perpetual concern but about which little is actually done. Everyone is for coordination, but no one wishes to be coordinated. "Coordination" has become a hollow catchphrase to respond to fragmentation of international action in an operational area. At best, it has amounted to periodic meetings that focus on an exchange of information between international actors during the course of a mission. One official has described it as never "by command" but sometimes "by consensus" and usually "by default."36 It seldom translates into integrated decision making on a regular basis, nor into genuine unity of effort. Coordination implies independent authorities' attempting to cooperate with each other. Despite much soul-searching, coordination has thus far amounted to little more than weak self-policing. When it works, most field-based personnel argue that coordination is based more on personalities than on standard operating procedures and structures.
The challenges here, however, may be less coordination and more a basic incompatibility of objectives. When enforcement begins, there are humanitarian consequences and tough choices about short- and long-term trade-offs. Humanitarian agencies are sensitive to the fact that political leaders have sometimes justified a failure to use deadly force in terms of the need to keep aid flowing. These agencies have been careful to reject this rationale by arguing that they do not wish to provide excuses for failure to end the causes of suffering. Moreover, even in the most insecure and unstable of circumstances, dedicated civilian humanitarians stay as long as possible. That the staff of the International Committee of the Red Cross remained in Kigali as Belgian soldiers departed or that numerous NGOs remained in Sarajevo despite snipers and rocket attacks indicates the level of commitment by many civilian humanitarian agencies to providing assistance and protection to affected local populations.
Yet, in seeking to apply deadly force, militaries may make it impossible for humanitarians to remain. Less humanitarian succour in the short run may be required in order to improve security and, ultimately, humanitarian action in the longer run. For instance, Bosnia demonstrated that "lift and strike" - eliminating the arms embargo on the Muslims and using NATO airpower against the Serbs - would have been incompatible with continued humanitarian operations. The same would have been true had it actually been possible to disarm the massive refugee camps controlled by génocidaires in eastern Zaire. Outside humanitarians would have been forced to abandon the camps while the mopping-up occurred. Moreover, civilian humanitarians (like journalists) can become pawns and hostages. This line of reasoning has been used, for instance, to explain NATO's reluctance to round up prominent war criminals in post-Dayton Bosnia and Herzegovina.
Compelling compliance with peace agreements and providing protection for civilians are relatively new tasks for the military in modern war zones. They therefore require calling into question typical procedures that have evolved in response to more traditional warfighting situations. According to the then Chair of NATO's Military Committee, General Klaus Naumann,
| [T]wo military sacred cows are on the slaughtering block. It will be virtually impossible to rely on secrecy and surprise or to make maximum use of the full and devastating power of modern weapons, traditionally key military assets. Moreover, democratic societies that are sensitive to human rights and the rule of law will no longer tolerate the pervasive use of overwhelming military power. Coalition operations will necessarily be characterised by gradualism and possibly delays in striking sensitive targets. These are lasting military disadvantages of coalition operations that are only partly compensated by the stronger political impact of such operations in comparison with those of a single country.37 |
Enforcement actions conducted by coalitions of the willing have to take into account the politics of member states and the impact of the media. While politics always intrudes on military efforts, coalition intervention in Kosovo demonstrated that the pace and intensity of military operations may be further affected by the lowest common political denominator among member states. As cohesion within in an intervening coalition is key, Greek and Italian reluctance played a role in constraining Washington and London in ways that would have been unthinkable for warfighting driven by truly vital interests. Furthermore, coalition warfare entails other restrictions on military conduct and political decision making that results from differing national legislation. In addition to the impact on the ground, the domestic conditions in 19 member states further reduced the preparedness of countries to conduct casualty-prone operations involving ground forces.
Political concerns are also important in that the use of military force may be as much about sending political messages as about securing military objectives. Many commentators point to NATO's bombing in 1995 as helping to move Belgrade closer to Dayton's negotiating table. Similarly, the 78-day campaign in the Kosovo War was designed not simply to destroy military targets but also to secure the political agreement negotiated at Rambouillet.
Modern communications and media coverage also influence enforcement in that there is a new capacity for the public to monitor the effectiveness of military operations and the impact of military action on civilians. Enforcement is likely to receive widespread public support if deadly force is applied in a way that can be, at least, tolerated by the majority of the populations in the countries of a coalition. The fallout from media coverage of civilian suffering as a result of sanctions in Iraq or of air strikes in Serbia is a new element in circumscribing military as well as political strategies.
Beyond contributing unevenly as a stimulus to intervene in a particular emergency (issues of where and when), television also has an impact on the question of how to intervene. The media are much better at focusing on the consequences of political decisions than on the rationale behind them. They are relatively incoherent when attempting to explain the political or diplomatic context in which humanitarian disasters, war crimes, crimes against humanity, or famine takes shape. Television has a tendency to focus on guns and bombs, rather than the operational plans and orders, and on the mutilated corpses, rather than the strategic goals of the "ethnic cleansers." In doing so, the media obscure the strategic context in which human suffering occurs.38
Television is thus something of a double-edged sword with regard to the protection of civilians in armed conflict. The media do not like to depict misery without also showing that someone is doing something about it. The presence of outside aid workers in zones of deadly conflict mitigates the horror, by suggesting that help is at hand, and affords the illusion that major powers are doing something. In this way, television coverage can also become an alternative to more serious political and military engagement, and it thus contributes to the illusion of effective engagement by Western governments. Traditional humanitarian aid sometimes precludes (and is often intended to preclude) any sort of intervention.
Civilians now constitute the majority of war casualties, an atrocious and alarming trend that has moved the UN Secretary-General to call for the creation of a "culture of protection" in dealing with situations of armed conflict.39 In his March 2001 report on the protection of civilians in armed conflict, he emphasized that protection is a complex and multilayered process, involving a diversity of entities and approaches, including the delivery of humanitarian assistance, monitoring and reporting of violations of IHL and human rights law, institution-building, governance and development programmes, and ultimately the deployment of troops. Accepting the importance of all facets of the protection challenges,40 this section nonetheless focuses on the potential role of intervening military forces.
The humanitarian missions of the 1990s are commonly seen as having been somewhat successful in the provision of material assistance to populations in need but inadequate in responding to their security needs. In far too many cases, those who received assistance ended up the "well-fed dead."41 The words on a sign held by a Kurdish child fleeing the wrath of the Iraqi regime make the point eloquently: "We don't need food. We need safety."42
This critique is equally applicable to military operations in humanitarian crises. Anecdotal reports suggest that soldiers may have done more to provide protection than commonly believed. In many instances, they have pushed and even exceeded the limits of their ROEs rather than standing by and watching civilians being massacred. To cite only one example, some UNPROFOR troops were known to move into the line of fire when civilians were under attack, thereby enabling them to return fire supposedly within the bounds of self-defence. That said, the failures to provide adequate military protection to populations at risk in the 1990s are staggering.
The "safe havens" established in northern Iraq following the Gulf War represented one of the earliest efforts to implement coercive protection. The initial flight of the Kurdish population was a response to brutal suppression by Iraqi aircraft and helicopter gunships. The return of Kurdish refugees from the mountain camps along the border with Turkey depended on addressing these threats to their physical safety. In April 1991, Operation Provide Comfort created a security zone in northern Iraq. It was enforced through a no-fly zone banning Iraqi fixed-wing and helicopter flights north of the 36th latitude. Another no-fly zone was subsequently established in southern Iraq, below the 32nd parallel (and this was later expanded to the 33rd), to protect the Shi'ite population. Both no-fly zones remain in effect. While they continue to provide a modicum of protection for those living within them, they depend on deployment of US and British aircraft more than a decade after the outbreak of the crisis.
It was during the UN mission in Bosnia, however, that a much broader range of protective measures was attempted. In addition to a no-fly zone, UNPROFOR also used military force to protect aid convoys, create humanitarian corridors allowing civilians to flee areas of fighting, and establish so-called safe areas.
The air bridge established for Sarajevo allowed the population to receive essential supplies, despite the Serbian blockade - though it was repeatedly cut off by Serb fire. Convoys were escorted by UNPROFOR troops, but they could never impose access and were frequently stopped by Serb roadblocks. By deterring direct attacks, however, UNPROFOR did increase the physical safety of the convoys.43
Srebrenica became the first area declared "safe" in April 1993, and one month later Bihac, Goradze, Tuzla, Sarajevo, and Zepa were also included. Later resolutions authorized member states (implicitly NATO) to take all necessary measures to protect these areas. In particular, Resolution 836 (1993) included the use of air power to support UN forces on the ground. But the resolution eschewed the use of the terms "protect" or "defend," and linked the use of force instead to UNPROFOR's "acting in self-defence."44
UNPROFOR's overall record in protecting civilians was, at best, mixed. Although humanitarian aid reached hundreds of thousands of exposed people (more than 4 million received assistance), the creation of the security zones ultimately had perverse effects. The safe areas were almost all enclaves in Serb territory and were easy targets for aggression. At the same time, Muslim forces frequently used them to launch attacks on Serb forces, knowing that NATO could be provoked and might intervene against the Serbs in the event of return fire. Although Sarajevo was never overrun, the other safe areas fell to Serb forces. In the case of Srebrenica, at least 7,000 unarmed men and boys were murdered.
No other mission in the 1990s placed as much emphasis on protection as UNPROFOR, but several other cases are worth considering. In Liberia, following the execution of President Doe in September 1990, and with thousands of civilians trapped in Monrovia and hundreds dying daily, ECOMOG was mandated to clear the capital of rebels and make it safe. This task was accomplished by the end of December 1990, except for occasional infiltrations by the National Patriotic Front of Liberia.
Relative safety then prevailed in Monrovia until April 1996, when a bloody conflict erupted after police attempted to arrest Roosevelt Johnson, a former leader of a faction of the United Liberation Movement of Liberia for Democracy. The carnage involved civilians and children, and the widespread violence forced the evacuation of virtually all the humanitarian relief workers from the safe haven where protection had been provided for up to 1 million people. When ECOMOG troops eventually managed to separate the armed factions and gain a measure of control over the city in June 1996, health workers recovered more than 1,500 bodies from shallow graves.45
The prospects for coercive prevention have also been extensively debated in the context of the Rwandan genocide, especially the request by the force commander for an additional 5,000 troops only days into the genocide. With an ethnically mixed population and a bloodbath occurring in varying degrees of intensity throughout the country, there were no preexisting "safe areas" to defend. Stopping the genocide therefore would have required halting mass displacements - many victims were identified as they passed through road-blocks. It would also have required protecting specific sites - churches, schools, stadiums - where threatened populations congregated. There is widespread acceptance that a brigade would have been able to slow or perhaps stop the genocide.46 Although counterfactuals are hard to assess, even an assessment highly sceptical of Dallaire's claims concluded that the deployment of troops on a realistic schedule could have saved as many as 125,000 Tutsi lives.47
These examples from the 1990s suggest that there are a series of discrete measures to provide protection for targeted populations. Whether they actually provide much protection at all is a major point of controversy. One set of protective measures relates to the protection of humanitarian action and includes the defence of aid convoys and the maintenance of humanitarian corridors. It would also include the use of security forces to protect the storage and distribution of aid as with the controversial use of "technicals" in Somalia. A second set of measures relates to the physical protection of populations in discrete locations. Here it may be useful to distinguish between larger safe zones, where people remain in their homes and communities, and safe havens, where people from the surrounding area seeking protection congregate.48 A related challenge is the protection of refugees in camps controlled by militants, as in eastern Zaire or West Timor.49 Finally, there is the more complex task of providing protection in the midst of genocidal violence as in Rwanda or Sierra Leone.
Even if characterized by sufficient military force to ensure safety of civilians, the coercive protection option, by itself, does not provide a long-term political solution for those being protected. In the absence of such a solution, the commitment by outside forces to protection would need to be indefinite. This is particularly true of safe areas, which, by their very nature, represent a limited commitment in circumstances in which the intervening force lacks either the capacity or the will to alter the political situation (that is, the one giving rise to the fears of repression in the first place). That limitation is often reflected in the administration of, and the protection afforded to, such a safe area, which is why safe areas have often been so vulnerable. It is also why many advocates for the displaced have argued that flight from a country of persecution is preferable to border safe areas.
National policy guidelines for participation in peace support operations continue to stress the need for a "comprehensive and lasting solution" as a precondition for involvement, but a more modest assessment of the attainable goals of military intervention to sustain humanitarian objectives is beginning to emerge. It revolves around the idea that military support can be used to create "humanitarian space" - including, but not limited to, security zones and safe corridors.
Doctrinal thinkers within the military have yet to create a systematic framework for intervention for the protection of civilian populations. The NATO manual on peace support operations includes a section entitled "The Protection of Humanitarian Operations and Human Rights" and another entitled "The Establishment and Supervision of Protected or Safe Areas." The NATO doctrine states that,
| Should the situation be such that humanitarian operations require wide spread protection and human rights abuses are endemic, then a PE [peace enforcement] profile will be more appropriate [than a peacekeeping profile]. The foremost task for the military force may be to restore the peace and create a stable and secure environment in which aid can run freely and human rights abuses are curtailed. Specific protection tasks may include Non-combatant Evacuation Operations but will more normally apply to the protection of convoys, depots, equipment and those workers responsible for their operation. |
This encapsulates the full spectrum of possible military tasks in support of humanitarian goals, from guarding and escorting to the stabilization of a whole area of operations. Yet, the manual does not actually address how these tasks are to be accomplished. Similarly, for establishing and supervising protected or safe areas, the NATO manual observes that,
| Unless those within the safe area are disarmed, it may be used as a base from which to sally out and conduct raids. Clear guidance should be given, therefore, as to what is demanded of any force that is tasked with establishing and supervising a protected or safe area . The first stage in any PSO [peace-support operation] designed to protect or make an area safe is to demilitarize that area and this in itself may require enforcement actions.50 |
Others have also considered matters of protection in the revision of military doctrine. The British Army is involved in a continuous reappraisal of their peace support operations doctrine, based on their experience in low-level operations in support of the civilian power. Other European nations, such as Sweden, have also captured their recent military experiences in similar national doctrines. However, their doctrines still tend to be based on multifunctional peacekeeping, with its emphasis on multiple actors and the need for end-states defined as "sustainable peace."
While far more "robust" than any guidelines that have emanated from the UN Secretariat, accepting as it does a notion of enforcement, the doctrine still hinges on consent. Some analysts have suggested that the issue of consent be resolved on a situation-specific basis.51 For example, if the military threat posed by noncooperating belligerents is limited to small-scale resistance, banditry, and looting and the principal parties to a conflict remain committed to an agreement, an intervention force may be empowered to confront such a marginal threat directly. Even against more effective forces, enforcement action does not necessarily increase the risk to intervening troops. There is evidence, for example, that the more robust stance taken by British and Danish UNPROFOR troops gained them increased respect from the warring factions.
Similarly, if threats to civilians come principally from private militias and isolated thugs, a more robust response by intervening forces to protect civilians may not encounter serious counterattacks. For instance, even in the horror of Rwanda's genocide, with virtually no military presence on the ground, a few UN peacekeepers managed to protect some 10,000 civilians in Kigali's Amahoro Stadium and King Faisal Hospital.
If consent is no longer a definitive and distinguishing feature of multilateral engagement in deadly conflicts, then current approaches are in need of urgent revision. Some analysts have suggested that the concept of legitimacy should replace consent as the foundation for intervention, arguing that it provides a more feasible doctrinal basis for interventions where the conditions for either supervising a peace agreement or compelling the parties to peace cannot be met.52
Another new point of departure for conceptualizing multilateral military interventions could be described as a "law-based" approach, rather than one based on the elusive notion of peace. There is clearly a difference between a temporary peace that may be achieved through coercion and a more durable peace that involves aspects of legitimacy, political participation, social integration, and economic development. However, it is difficult, if not impossible, to begin the long path to the higher, more dynamic aspects of peace before the lower aspects of law and order are met.53 In addition, it may be politically more feasible for outside military forces and their political masters to commit themselves to providing a breathing space, rather than the peace that can ultimately only be ensured by local actors.
In some respects, the provision of protection can be likened to the enforcement of international legal instruments such as the Geneva Conventions. Military organizations worldwide remain extremely reluctant to engage in anything akin to policing functions, and crime remains an overlooked issue in military doctrinal thinking.54 Nevertheless, the singular strand that would pull together various mission components dealing with protection, human rights, and security issues is a conception of intervention to enforce international law writ large.
This seemingly obvious but profound general principle was identified by the Joint Evaluation of Emergency Assistance to Rwanda: "[R]espect for international law and norms will tend to diminish conflict, whereas violations will tend to stoke it." The report continues, "[T]he behaviour of state and presumptive state actors was in this respect less than adequate, and mostly counter-productive." The evaluation identified the following shortcomings: international law and associated principles designed to uphold international order were repeatedly violated, including the sanctity of national borders and arms embargoes; international refugee law was not observed; the legal right and moral obligation to intervene to stop genocide were not acted on; human rights law was repeatedly and severely transgressed with impunity; and donors continued to give economic aid and even military assistance to a government linked to systematic violations of human rights.55
Olara Otunnu, the Special Representative of the Secretary-General (SRSG) for Children and Armed Conflict, has summarized the case for the logic of intervention to enforce international law in the following way:
| Over the past 50 years, the countries of the world have developed an impressive body of international human rights and humanitarian instruments . The impact of these instruments remains woefully thin on the ground, however. Words on paper cannot save children and women in peril. The Special Representative believes that the time has come for the international community to redirect its energies from the juridical task of the elaboration of norms to the political project of ensuring their application and respect on the ground.56 |
If military intervention for humanitarian objectives is viewed as an exercise in enforcing international law, then the principles and practices for the conduct of military operations become clearer and logically more consistent. Reduced to its simplest terms, the law to be enforced during an intervention is defined by the mandate, but it would necessarily also include general tenets of IHL and human rights law. According to this line of argument, military intervention to enforce international law is a precursor to broader peace building.
The implications of a macro-strategic shift from peace enforcement to international law enforcement would no doubt provoke a vigorous debate among military practitioners and doctrinal thinkers, as well as humanitarian and human rights agencies. But by accepting, at the political level, the concept of intervention as the enforcement of international law, the military's desire for clear overarching strategic rationale could be satisfied.
"Post-conflict peace building" has entered the working vocabulary of practitioners and analysts alike. Beginning with the call in An Agenda for Peace,57 many bilateral and multilateral agencies, including the Washington-based financial institutions that formerly had avoided war zones, have moved closer to the coal face of active hostilities. The motivation is two-fold. First, there is a mammoth need to rebuild war-torn societies. And second, there is a preventive perspective. Successful humanitarian intervention may halt killing and provide temporary security. But in order to forestall a return to the status quo ante, it is necessary to provide enough breathing space for a local society to begin mending wounds and for the state to begin functioning again.
This is not the place to review the litany of challenges of post-conflict peace building. A section in the bibliography in Part II is devoted to the various dimensions of this complex subject. But two topics that are closely linked, both temporally and substantively, to compelling peace and to providing protection merit attention here. They provide distinct operational challenges for military forces engaged in international enforcement actions. The first involves the transition from coalitions of the willing during an enforcement phase to a less insecure phase in which the UN and other multilateral agencies may assume a range of responsibilities, including aspects of physical security. The second is the related topic of a comprehensive, if temporary, international takeover of responsibility for government functions.
One of the conclusive trends from the 1990s is the UN's devolution of authority for enforcement. During a humanitarian intervention, the UN usually takes a back seat in operations even if the Security Council is involved in authorizing and monitoring the effort. However, it is necessary to move toward post-conflict operations in which the world organization and other intergovernmental bodies have a more substantial role. States providing outside military forces are anxious to reduce their presence. Moreover, it is desirable to mobilize as many intergovernmental and nongovernmental resources as possible for what hopefully is the beginning of a post-conflict phase.
There have been four general types of transitions following the non-UN enforcement actions of the 1990s. All have substantial humanitarian dimensions that should be kept in mind in attempting to think about how best to sustain peace and protection.
The first is illustrated by the continuing effort by Washington and London to enforce the no-fly zone in northern Iraq - that is, there has been no transition. After the initial deployment of the UN Guards Contingent in Iraq, there has been no UN security presence on the ground. However, UN and NGO humanitarian and development agencies maintain modest activities.
The second type of transition involves an awkward and largely problematic transition to a UN operation. The end of the US-led United Task Force (UNITAF) led to the hasty hand-over to UNOSOM II, and this Chapter VII UN operation itself left the country without a functioning government in 1995. In Rwanda, after two months, the French Opération Turquoise handed over the international military portfolio to a renewed UN Assistance Mission in Rwanda, which itself was asked to leave by the government, a year later; but, in this case, the government was in a position to guarantee services and security. In Liberia, the transition from ECOMOG enforcement to the unarmed UN Observer Mission in Liberia was without incident, but it also left a fledgling new government without security on the ground.
A third type of transition represents a preferable scenario - the relatively smooth transition to a comprehensive UN mission. In Haiti, there was a relatively rapid if somewhat turbulent handover from the US's MNF, after six months, to a Chapter VI UN Mission in Haiti, which successfully helped oversee elections and the installation of a new government, as well as continued efforts to reform the security sector. The Australian-led enforcement effort through INTERFET smoothly handed over security and administrative responsibilities after four months to the UN Transitional Administration in East Timor. Similarly, although with less security as a result, in Sierra Leone there was a side-by-side presence of ECOMOG with UNAMSIL, with the remaining ECOMOG soldiers becoming part of UNAMSIL. Security deteriorated after the transition until bilateral assistance was provided by the UK, and subsequently, the UN's troop strength was doubled.
Finally, a fourth pattern occurred in the Balkans, in which coalition forces remained while the UN returned. With IFOR and SFOR in Bosnia, as well the Kosovo Force in Kosovo, NATO soldiers remained behind in great numbers to provide security while the UN and other intergovernmental organizations began administering the two areas.
Four analytically distinct kinds of protection tasks emerge from these post-enforcement experiences that are worth highlighting here. The first is the physical protection of minorities. This operational challenge is particularly important when civilians return to territories where another ethnic group is in the majority and there are antagonisms between or among them.
The relatively low number of refugees and internally displaced persons who have returned is telling in the Balkans. In Bosnia, the UN High Commissioner for Refugees reported that it
| faced enormous difficulties in trying to implement what has turned out to be one of the most contentious provisions of the Dayton Peace Agreement: the return of refugees and displaced people to their homes in Bosnia and Herzegovina . Regrettably, the return of many other people was blocked by the leaders of Bosnia's divided communities, some of whom openly pursued in peace the same policy of ethnic separation which they had previously pursued during the war.58 |
The defence of the Serbian minority in post-war Kosovo is another striking recent ex-ample. In a June 2001 report to the Security Council, the UN Secretary-General reported that ethnic and political violence posed "a tangible threat to the fulfillment of the UNMIK [UN Interim Administration Mission in Kosovo] mandate." The increase in tensions in both predominantly Serb cities like Mitrovica and mixed ones like Pristina "have resulted in both loss of life and a severe limitation on freedom of movement, particularly for the Kosovo Serb community . Largely as a result of the security situation, the number of returns remains minimal, and indeed in some areas more Kosovo Serbs are leaving Kosovo than returning."59
The second major protection task is security sector reform. The focus of such tasks has been to assist local authorities in their own process of security sector transformation. Bilateral and multilateral donors alike have sought to influence the direction of change, establish good practices, and transfer knowledge and insights to the new authorities. The importance as well as the difficulty of such efforts to recruit and train local police and reform the penal and judiciary systems has been evident in places as diverse as Haiti, Rwanda, and Bosnia. The problems are especially difficult in situations where trained personnel have been killed or fled in large numbers to avoid violence. Such reform is essential both to ensure public safety and to gain the confidence of the local population. As one first-hand observer has summarized, "Without accountable criminal investigative procedures, trained judges and lawyers, and prisons that adhere to fundamental human rights standards, police reform would be redundant."60
In this respect, an interim challenge concerns the use of civilian police. In fact, civilian police now number second only to soldiers in UN operations. In light of the post-war conflicts and need for impartiality, the Panel on UN Peace Operations notes that "[d]emand for civilian police operations dealing with intra-State conflict is likely to remain high on any list of requirements for helping a war-torn society restore conditions for social, economic and political stability."61 The difficulty of recruiting international police is a central and crucial bottleneck, particularly in light of the need to reform and restructure local police forces in addition to advising, training, and monitoring new recruits.
Until recently, these efforts at security sector reform have been predicated on the ongoing consent of belligerents. In the case of Angola, for example, the third UN Angola Verification Mission was established by Resolution 976 (1995), which indicated that compliance by the parties was optional, or at least not compulsory. From the start, even this demand was patently ignored by the Union for the Total Independence of Angola, while no direct reference was made to the safety of local civilians.
The third main task concerns disarmament, demobilization, and reintegration (DD&R) of former warring factions. Reintegration is key to longer term peace building, and ultimately the resumption of the path to economic and social development. However, the focus here is on the shorter term, namely, on the security and protection of civilians. At the same time, an early, generous, vocal, and genuine commitment to reintegration and development can also have a beneficial short-term impact on the success of DD&R.
As reflected in Security Council resolutions and mission mandates, one key to stabilization has always been the demobilization of former combatants. Another aspect of the same challenge is to reconstitute, or create, a new national armed forces, which integrates, if possible, elements of the former armed forces with formerly competing factions or militias. The unstated purpose of stabilization measures has been to wrest power and the means of violence from local militias and warlords and recentralize it. In other words, the success of the whole intervention process has hinged on the degree to which warring factions can be effectively disarmed.62 However, disarmament has been one of the most difficult tasks to implement. It has been extremely hard to collect all weapons, even at the end of an armed struggle, when the remaining conditions of insecurity create high incentives for the maintenance and acquisition of light weapons and small arms by the community at large. Physical security and economic needs have fuelled a trade in small arms long after withdrawals of intervention forces.
All disarmament commitments in peace processes have tended, at least at the outset, to be based on consent, regardless of whether external forces are deployed under a Chapter VI or VII mandate. However, the idea of voluntary disarmament is soon challenged by issues such as the security and economic livelihood of combatants thinking about turning in their weapons, along with the normally deficient number of peace support forces who are supposed to collect the arms. Faced with noncompliance with the disarmament provisions of the mandate, intervention forces have exhibited two basic reactions. The first is acquiescence in the face of local recalcitrance, combined with a shift in the mandate that allows the peace process to proceed regardless. The second approach has been to apply limited coercion to reluctant parties, while attempting to preserve the consensual nature of the intervention at the strategic level.
Cambodia and Angola provide classic examples of the acquiescent approach, while Somalia and, to an extent, Bosnia are examples of attempted coercion. Regional and UN operations in West Africa are characterized by a perplexing mixture of coercion and acquiescence, while the approach to disarmament and security challenges in Rwanda defies logic. None of these examples, however, provides positive conclusions about the ability of intervening military forces to improve the protection of civilians at risk by reducing arms available to local soldiers, militias, and gangs. In fact, the cases of Somalia and Srebrenica suggest that if this is not possible, it may be better not to pursue disarmament at all.63 Intervention forces with a disarmament mandate have not been provided with the doctrinal, political, and military discretion to pursue an effective coercive strategy.
The fourth security task during the transition relates to the pursuit of war criminals. The details of the ongoing criminal proceedings for Rwanda and the former Yugoslavia were analyzed earlier. What is worth mentioning here is the possible new demand on military and police forces. Both during and immediately following enforcement actions, they may be required to locate and round up indicted war criminals without the consent of local political authorities. NATO commanders and politicians have been hesitant to pursue and arrest such criminals in the Balkans because of the possible hostility and violent reactions of local populations. Hence, some indicted criminals remain in hiding or are even allowed to live openly. According to the International Crisis Group, in many Republika Srpska municipalities,
| individuals alleged to have committed violations of international humanitarian law during the 1992-1995 war - mass murder, ethnic cleansing, and mass rape - remain in positions of power. They continue to work in the police force, hold public office, exercise power through the legal and illegal economy, or influence politics from behind the scenes. In eastern Republika Srpska in particular, many of these "small fish," who served in the local Serb wartime administrations and military units that carried out the policies of ethnic cleansing, remain a frightening force, often actively working to prevent refugee return and moves towards ethnic reconciliation.64 |
This operational challenge posed by the pursuit of war criminals is likely to grow with the establishment of additional country tribunals and burgeoning activities of the ICC.
During the mid-1990s, a proposal to address the longer term peace building challenges frequently made by academics - particularly in the context of failed states - was the reactivation of the UN Trusteeship Council. The idea was largely dismissed out of hand by donor and target countries alike. Because of the inherent paternalism and the daunting challenges of nation-building, the resurrection of trusteeship seemed as obvious as it was impossible.
Yet, by the end of the decade, following interventions in Kosovo and East Timor, similar approaches were not merely under discussion but were actually implemented. In both cases, the previous governmental authorities (the Federal Republic of Yugoslavia and Indonesia) withdrew their security forces. Their sovereign authority over the territories in question was suspended, but before functions of new local governments were in place.65 The UN was therefore tasked, not only with constructing or reconstructing law and order, but also with a whole range of issues from day-to-day policing tasks to the long-term establishment of the criminal-justice triad of police, judiciaries, and penal systems, as well as the development of new legal codes. As one analyst has noted, "All of this points toward an international change comparable to decolonization, but operating in reverse gear, a counter-reformation of international trusteeship."66
Although elements of assistance to civilian authorities had been present in UN efforts in Namibia and Cambodia, the extensiveness and likely duration of the world organization's activities in Kosovo and East Timor are such that they are qualitatively different. Somewhat paradoxically, it was the Somalia experience that led to a realization that international responses to complex emergencies require substantially more than the use of force. The sources of deadly conflict are political, and a political capacity in the field is required to address them. In retrospect, there was hardly a better case for UN trusteeship than Somalia, because the state ceased to exist in anything but name. In contrast, bombing campaigns in the Balkans were eventually replaced by troops, civilian police, and administrators, as part of a massive effort to help mend societies and allow civil society and government authority to begin anew.
Historical analogies are always problematic, but analysts are naturally drawn to thinking about the Allied occupation of Germany and Japan immediately following the Second World War. The scale of destruction and displacement there would resemble that resulting from many internal armed conflicts of the 1990s. There were factors that facilitated progress in Germany and Japan that are missing from contemporary war zones - for instance, unconditional surrender gave more leeway; highly literate populations facilitated a rapid turnaround; and the Allied commitment to reestablish friendly state structures was serious and based on hard Realpolitik calculations. Nonetheless, today's thriving democracies and economies in Germany and Japan suggest the possibilities for, and payoff from, externally sponsored but temporary nation-building under appropriate circumstances. In addition to clear goals, cooperation among the allies, and substantial investments, according to one commentator the success can also be explained by "persistence in the face of inner doubts, resistance to external criticism, and acceptance of the glacial pace inherent to the process."67
Engagement in such a comprehensive peace building agenda is predicated on the assumption that military enforcement action has previously created a sufficiently secure macro-security environment for such projects to succeed. But the advent of multifunctional missions meant there were special command and control and harmonization problems, as separate elements functioned more independently than holistically to address the myriad problems. Therefore, a political capacity was required, not only to address the political sources of conflict on the ground, but also to unify the international efforts in the field - what has been labelled "peace maintenance."68
Coordination between these political entities and the military forces preparing to depart is particularly important. Informed by the experiences of Haiti and other complex crises, the US developed Presidential Decision Directive 56 on Managing Complex Contingency Operations. It was first used in Eastern Slovenia and Kosovo. The UK established a Joint Defence Centre to promote joint civil-military doctrine. NATO updated its peace operations doctrine along similar lines. And the Organization of African Unity has expressed interest in developing a comparable doctrine.69
Perhaps the most unusual aspect of transitional administration has been experiments to overcome serious previous shortcoming in interventions - namely links to local communities. In both Kosovo and East Timor, post-intervention efforts represent more of a longer term international commitment to helping the target areas and affected local populations to get back on their collective feet, a substantially new way to approach the responsibility to protect affected populations after an intervention. Criticized by some as "neocolonialist," nonetheless the necessary tasks of helping to mend war-torn societies have clearly emerged as an international, as well as local, priority.
The legitimate participation of local communities throughout a significant international transitional period is an old problem that seems to be emerging as a new international puzzle to solve. By the end of the 1990s, outside efforts to address human catastrophes began to include international missions to assume temporarily exclusive responsibility and administer an area directly in a governorship capacity. Or such transitional missions may assume responsibilities of a transitional process but not conduct all the tasks of governance directly. To date, there have been four categories of help:
Within such efforts, the international team's leadership - at national, regional, and district levels - is essential to the successful accomplishment of a mandate. The transitional administrator is the chief executive officer of an international mission and may be referred to as an SRSG (Somalia, Cambodia, and Haiti); High Representative (Bosnia); supervisor (Brcko); administrator (Mostar); or transitional administrator (Eastern Slovenia, Kosovo, and East Timor). In some essentially military cases, a force commander may also be the chief executive officer (UNITAF in Somalia, INTERFET in East Timor). In the structure of political authority and civil administration, one of the most important positions next to the national leader is the regional-level administrator. This individual may be referred to as a regional administrator (initially in Kosovo), provincial director (Cambodia), zone director (Somalia), district administrator (East Timor), or, in military areas, the sector commander (Bosnia). The next level is the district one, which is the base of the structure of political authority and civil administration, and here the transitional administrator is the district administrator, who is the frontline of administration and the one on whom the maintenance of law and order and the pacific settlement of disputes rests. Perhaps the most critical task requiring an alliance between the district office, international NGOs, and the local community is the use of force, either in a policing capacity to quell disorder, violence, or criminality or in a military capacity to ensure the delivery of food or respond to a challenge for a warring faction.
Past experience demonstrates that if the internal-security challenge is not handled early, "old" habits and structures will prevail and undermine other efforts to enhance post-conflict peace building. The immediate aftermath of any civil war spawns organized crime, revenge attacks, arms proliferation, looting, and theft. UN civilian police officers deployed alongside peacekeepers to assist in the resuscitation of national law enforcement agencies have not been equipped to address law enforcement in a "not crime-not war" environment. The military has remained the only feasible instrument, although this reality often has been obscured by the simplistic notion of peace as the antithesis of war.
Since 1999, the UN has experienced serious problems with law enforcement in Kosovo and East Timor, as a result of the absence of an "applicable law." The 2000 report from the Panel on UN Peace Operations thus recommended that, where such a situation arises, a model "UN interim criminal code" could fill the vacuum until there is an applicable law to be enforced by peacekeepers. The UN Secretary-General subsequently indicated that he has appointed a team of legal experts "to conduct a needs assessment of the areas in which it would be feasible and useful to draft a simple, common set of interim procedures," rather than a comprehensive criminal code.70
In order to provide an institutional framework for civilian personnel in Kosovo, the Special Representative, acting in terms of Resolution 1244, passes "laws" in the form of regulations to govern the province. These ad hoc regulations are intended to deal with specific situations ranging from policing, the appointment of judges, the arrest and detention of criminal offenders, taxes and custom duties, fiscal and monetary policies, among others. However, this arrangement, as well as the notion of an interim criminal code or interim policing procedures is delinked from the military deployment. At the same time, the UN Secretary-General has recognized that "[i]nternationally recognized standards of protection will be effectively upheld only when they are given the force of law, and when violations are regularly and reliably sanctioned."71
Limiting the adverse economic impact following interventions is also an emerging priority. Where situations of conflict have been severe enough to merit multinational humanitarian interventions, traditional economic practices and subsistence patterns will undoubtedly have been disrupted. In addition to understanding how those traditional patterns are reflected in the organization of disputing groups, peace operations should be conducted with a self-conscious sense of how their presence distorts local practices and values.
Peace operations introduce goods - like food supplies - that would be otherwise unavailable to local populations, and they inject foreign exchange that can distort the fragile local economy. In such a context, it is important to be sensitive to the effects of such infusions. Care should be taken that the relative abundance of goods and money in a peace operation does not get turned to socially destructive ends. Profiteering, exploitation, and illegal activities are all likely to accompany such distortions. Under "normal" circumstances business activities and patterns of reciprocity within the local society may be quite different from what members of peace operations are used to in their own countries and cultures. Hence, distinguishing between damaging distortions and appropriate activities presents a challenge. Understanding as fully as possible local business and economic practices is necessary in order not to reproduce situations of dependency and partisanship. There is a growing academic literature on these problems.72
Providing enough security and space for societies to mend themselves after a humanitarian intervention may be so overwhelming as to frighten even the most committed internationalists. The military costs alone of maintaining the no-fly zone in northern Iraq approach $500 million annually, and those of the 30,000-plus soldiers in Bosnia and 50,000 or so linked to Kosovo are estimated to be some $4 billion annually. The political will to maintain such security efforts - both financial and military - are, to say the least, a potent challenge for politicians and humanitarians alike. Sustaining accompanying efforts to administer a protectorate in Kosovo or a similar trusteeship in East Timor for as long as a generation adds to the burden of mobilizing will and resources to protect civilians following interventions elsewhere. "Donor fatigue" or "compassion weariness" are disputed by some, but the fact that they have such currency suggests at least some basis among publics and parliaments.
Humanitarians argued throughout the 1990s that humanitarian action is no substitute for politics, but how sustainable are such comprehensive transition efforts to maintain peace and protection? Undoubtedly other future cases will require protectorates, but will governments accept responsibility for enforcement efforts to compel compliance with a peace agreement? As there will undoubtedly be cases where the answer is "no," it is all the more important that coercive protection measures be considered. Even when vital interests are not engaged and comprehensive deployments are not possible, there may still be a chance that someone will act and make a difference to the lives of affected populations.
Providing protection entails a lower threshold of military resources and political commitment than compelling compliance with an imposed peace, but coercive protection can make a difference. This is not to underestimate the difficulties - the preceding analyses have demonstrated numerous operational problems for coercive protection. However, the modified "do something" approach can save lives and provide the chance that a functioning sovereign state reemerges as the provider of protection.
Here it may be useful to reconsider the case of Rwanda, the case that has framed assessments of humanitarian intervention. There was no robust intervention, and there certainly has been no substantial international protectorate. Nevertheless, a modicum of security and state services has returned, despite the tragic events of 1994. Would it not be possible to imagine the same outcome, but with slightly more robust and timely international responses in that fateful year that might have slowed the momentum of the genocide, prevented the flight of millions, and saved a few hundred thousand lives?
Although the international debate on humanitarian intervention has focused largely on questions of authority and capacity, the dearth of effective international responses has in most cases resulted from a lack of will. In neither Rwanda nor Srebrenica did a lack of authority or capacity stand in the way of action. In both cases, Chapter VII mandates ex-isted. When Srebrenica was being overrun, military aircraft from the North Atlantic Treaty Organization (NATO) were in the air waiting only for the political order to strike. In Rwanda, there is now broad agreement that the necessary military forces could have been deployed to slow down or even halt the génocidaires, equipped with only light arms or even machetes.
The problem, as has been repeated in a litany of speeches and analyses, is a lack of will. But such a designation often does little more than obfuscate the central questions of motivation, decision making, and implementation among a range of disparate governments and intergovernmental bodies. Accepting that there will be circumstances in which interventions will be deemed both legal and legitimate, the objective here is to explore the challenges of mobilizing national governments and generating effective intergovernmental cooperation to act in the face of human catastrophes.
For prevention or intervention alike, the challenges of moving from words to deeds have much in common. Two points raised earlier are worth reiterating. First, for the notion of responsibility to be meaningful, it should ultimately reside in specific places and institutions, and with specific people. If everyone is responsible then no one is actually responsible. Second, mobilizing support for a specific instance of humanitarian intervention is first and foremost a challenge of leadership because there will always be a compelling rationale for inaction.
There is nothing unusual about the unwillingness of politicians and government officials to participate in high-risk interventions far from their borders in the absence of vital interests or of pressures from domestic constituencies. Caution is perhaps easiest to understand in two sets of countries: those with reason to worry about the possibility of future interventions on their own soil; and those in possession of military, economic, and political assets that are most in demand from international bodies for implementing intervention mandates. For the leaders of the second set of countries, votes in intergovernmental fora to authorize such interventions may well entail their constituents' bearing significant human, financial, and material costs.
Neither international nor domestic decision making processes operate independently. Domestic factors are often more influential, but domestic decision making is affected by international developments and deliberations. Domestic forces, like national interests and identities, are not immutable. They are subject to being redefined, and international crises and ensuing debates often directly influence the power profile and perspectives of domestic political actors. Mobilizing domestic political forces should be an integral part of international strategies. Too often, multilateral planning and decision making considers domestic constituencies as afterthoughts rather than as essential prerequisites.
The analysis below, therefore, examines motivation, decision making, and implementation in both domestic and international arenas. It begins by discussing a neglected subject - the mobilization of domestic support for humanitarian interventions. Leadership remains critical to mobilizing adequate national will to undertake potentially costly and risky military operations. However, certain contextual factors - such as geography, political culture, and understandings of national interest - define the parameters and the constraints within which national leaders operate; they are discussed in the second section.
Getting national governments to provide support for intervention is an important first step in moving from rhetorical commitments to international action, which forms the basis for the third section. The accompanying crucial step in operationalizing a responsibility to protect civilians in deadly conflicts is ensuring sufficient multilateral leadership to mobilize intergovernmental machinery and to construct broad-based and sustainable "coalitions of the willing." This step, ignored or underemphasized in analyses of the last decade, forms the substance of the fourth and concluding section.
States remain the ultimate units of decision making about military interventions for humanitarian objectives within the United Nations (UN) and elsewhere. Accordingly, foreign-policy decision making processes - and not the workings of multilateral organizations or the provisions of international law - define and influence the limits circumscribing potential humanitarian interventions. Security Council resolutions, in that sense, should be seen as the tip of the decision making iceberg - the result of a chain of political outcomes, beginning with the governing structures and political dynamics of individual member states. For most countries, and certainly for the great powers, fundamental decisions are made by heads of state, ministers, and parliaments, not by diplomats in New York.
States do not possess a monopoly of the means of persuasion or coercion, but they do control the lion's share. They include political, financial, and legal carrots and sticks for bringing uncooperative state and nonstate actors into line - including intergovernmental institutions. International agencies rely on their member states for human, material, and financial resources, as well as for the political backing required for humanitarian interventions. International institutions are relatively strong and effective when their members value what they do, and these institutions have sufficiently broad common interests to permit decisive multilateral action. When their members are divided, ambivalent, or apathetic, little gets accomplished.
Whatever the circumstances, a key question concerns will: Does there exist, or can there be assembled, enough political support within key countries, not only to authorize and undertake a particular intervention to pursue humanitarian objectives, but also to sustain it even in the face of possible setbacks along the way? Consider, for example, the impact of the slaughter of Belgian peacekeepers in Kigali; the bodies of the United States (US) Rangers dragged through the dusty streets of Mogadishu; and UN peacekeepers chained to bridges in Bosnia and Herzegovina. Most evident in cases of military intervention in which soldiers may be put in harm's way, the same line of questioning is apt for efforts to invoke and implement such nonforcible intervention as economic sanctions, arms and oil embargoes, and international criminal prosecution.
The dynamics of domestic political forces are not the same from country to country. In many cases there have been, and will be, domestic pressures for, as well as against, intervention. Rarely is there a single, universally accepted, understanding of the nature and content of the national interest. Indeed, it is commonplace for groups that are for and against intervention to coexist. Ultimately, decisions reflect how attitudes are framed and communicated, how leaders choose to address competing domestic influences, how perceptions of the political dynamics within other countries are taken into account in shaping policy choices, and how international and local groups seek to influence this nexus of factors. Thus, the next section is devoted to the question of how leaders affect and even manipulate them on behalf of robust military intervention for humanitarian objectives.
The end of the Cold War and the success of the Security Council-authorized collective security operation in Kuwait initially made the early 1990s look like the dawn of a new era - "renaissance" of the world organization was a frequent metaphor. In publicly justifying their decisions to participate in international efforts to enforce human rights norms, leaders customarily cited UN decisions and their national obligations under the Charter to carry out mandates. Council decisions, especially those taken under Chapter VII, were widely credited with adding both legal authority and political legitimacy to national action.
Activism within the Council's chambers, however, did not necessarily translate into effective action on the ground or into greater public credibility for the world organization. The number, variety, and size of UN peace operations reached historic heights in 1993. Yet, the relative successes of many of those early missions were overshadowed by failures in Bosnia, a wholesale retreat in Somalia, and the abandonment of defenceless civilians in Rwanda. In the US, these setbacks seemed only to confirm congressional scepticism, while feeble American leadership reinforced the caution already visible in many other capitals. As the 2000 Report of the Panel on United Nations Peace Operations underlined, many member states have become more prone to say "no" rather than "yes" to requests from the Secretary-General to provide forces for UN peacekeeping operations.1 It is a tendency that is even more pronounced for missions of open-ended duration that involve significant risks and uncertainties.
Given the magnitude of present operations in the Balkans (about 80,000 troops), as well as shrinking military budgets in the post-Cold War era, there are real constraints on most Western militaries. By way of historical comparison, UN peacekeeping may have peaked in 1993 at 78,000 troops. But today, if both NATO and UN missions are included, the number of soldiers in international peace operations has soared by about 40 percent, to 110,000. States are not running away from foreign military commitments, but they are being compelled to make choices about how to use limited and strained military capabilities to meet a variety of international demands.
If interventions regarded as legal and legitimate fail to occur because domestic will is in short supply, then a key challenge is altering the nature of debate in those countries whose participation and support are essential. How this shift might occur can be considered by examining two sets of questions. First, what have been the key determinants of national policies toward intervention, how have they varied from country to country, and how different are national decision making processes and structures? Second, what might be done to encourage a convergence of transnational and humanitarian impulses with national nterests and decision making processes? Ultimately, why particular countries act where and when they do is subject to several factors. Among the variables that help explain a willingness to participate in multilateral humanitarian interventions are geographic proximity, domestic political culture, and understandings of national interests.
States traditionally have found numerous reasons to intervene and justify intervention - some international, some domestic, and oftentimes a mix of both - with or without the UN's blessing. In general, geographic proximity - a feature that may have acute security, economic, political, and domestic dimensions - has played a crucial role. What happens nearby is more likely to endanger nationals, raise significant security concerns, and result in refugees, economic disruptions, and unwanted political spillovers. It is also likely to attract more comprehensive media coverage than events farther away. Such a crisis does not get lost as easily in the agenda of a regional organization as it does at the UN in New York.
Relatively few states, moreover, have the capacity to project military power far from home. Thus, options to intervene normally are more easily considered and implemented either in a neighbouring country or as part of a supporting role in an international coalition - whether led by the UN, a regional body, or a major power. Robust interventions are most frequently led by a regional power: Australia in East Timor, Nigeria in Liberia and Sierra Leone, South Africa in Lesotho, Russia in the former Soviet Union, and states of Western Europe in Bosnia and Herzegovina and Kosovo.
Only the great powers have the capacity to mount operations well beyond their borders. The US has frequently intervened within its own hemisphere (for example, Dominican Republic, Grenada, Panama, and Haiti), but it has also been indispensable in interventions elsewhere (Iraq, Somalia, and the Balkans). Long-distance military efforts have also been undertaken by others - the United Kingdom (UK), France, and Belgium - particularly in cases where there have been colonial ties.
Likewise, cultural affinity may play a role. During the Bosnian conflict, Iran regularly shipped arms to the Bosnians in contravention of the arms embargo. The justification was largely based on a shared Muslim heritage. It is thought that Secretary-General Boutros-Ghali's labeling significant efforts by the West in the Balkans as a "white man's war" had an impact in highlighting Somalia's relatively ignored position in 1992. The difficulty of applying such generalizations is evident from the fact that eventually, in both Bosnia and Kosovo, the Judeo-Christian West applied substantial military might in favour of largely Muslim populations and against states composed essentially of peoples with Catholic and Orthodox Christian backgrounds. The indictment and pursuit of war criminals also went against stereotypical cultural affinities in that the tribunal in The Hague had relatively few Muslims in the docket.
Whether a state is likely to join an international coalition engaged in humanitarian intervention often appears to be related to its political culture, which is shaped by history and by public and elite views about their country's place in the contemporary world. Latin American countries are, for historical reasons, generally cautious about either backing or joining in any effort identified as an "intervention," though this hesitation seems to be easing in some parts of the region. Sanctions and military intervention in Haiti were unanimously backed by the Organization of American States (OAS). Argentina, for example, has become a prominent UN peacekeeping contributor and has provided forces to the NATO-led missions in Bosnia and Herzegovina and Kosovo.
Japan, for a combination of historical, constitutional, and cultural reasons, remains cautious about sending its self-defence forces overseas, even under the blue UN flag.2 Germany, on the other hand, has shed some of its domestic legal restraints and political inhibitions, as demonstrated by its participation in Kosovo within the NATO framework. Thus, political cultures have evolved, especially over the past decade, to permit modest participation in international peacekeeping and even humanitarian interventions.
Other traditionally strong troop-contributing countries may have become somewhat more hesitant over that same period. Belgium, the Netherlands, and Canada faced some difficult national soul-searching following traumatic incidents involving their armed forces in UN operations during the 1990s.3 At the outset of the 1994 genocide in Rwanda, Hutu militiamen slaughtered 10 Belgian peacekeepers, spurring the withdrawal of the remaining Belgian troops and opening the door to the killing frenzy that followed. The inability of Dutch peacekeepers to do anything to prevent the massacre at Srebrenica in 1995 triggered a deeply painful national debate about the responsibilities and obligations of peacekeepers. Canada's proud peacekeeping tradition was tarnished when a national inquiry publicized an incident in which its soldiers tortured a Somali prisoner.
Another pertinent element of political culture is how to ensure democratic accountability when military forces are used in internationally approved enforcement operations. For international missions other than the traditional monitoring, observation, and peacekeeping, there is a tendency for democratic countries to involve parliaments in decision making. Although the Security Council provides both international and domestic legitimacy, it does not ensure democratic accountability within countries. Although analyses have focused on the role of the US Congress in such decision making, a recent research project suggests that eight other democracies - Canada, France, Germany, India, Japan, Norway, the Russian Federation, and the UK - are not dissimilar.4 Ensuring that military forces operate in accord with law and norms remains a national responsibility. Moreover, it is not impossible that in some future instance, a parliament could take a negative decision after a government makes a decision to participate in a Security Council-approved operation.
It is not surprising that where significant interests are not engaged, countries are hesitant to commit troops. Often, only countries with significant interests find sufficient motivation to consider joining an intervention force. This was not necessarily the case for traditional peacekeeping (that is, the permanent members of the Security Council almost never sent troops). It is certainly true for Chapter VII operations, and even more so for robust intervention involving greater firepower and greater risk. Recent examples that demonstrate this point include the British in Sierra Leone, the French in Rwanda and the Central African Republic, the Italians in Somalia and Albania, the North Americans in Haiti, Western Europeans throughout the former Yugoslavia, and the Russians in Georgia, Tajikistan, and Kosovo. This reality raises problems for those who often argue for only disinterested intervention. But the reality of the 1990s has been that humanitarian motives alone rarely suffice to sustain an intervention. Mixed motives are the norm, and many observers deem national interests as a necessary if insufficient condition for a successful humanitarian intervention.
Other kinds of interests also have an important impact on the willingness of countries to participate. For many countries, there is an interest in maintaining solidarity within regional groupings and military alliances. Whether the Rio Group, the OAS, NATO, or the Non-Aligned Movement, the views of "like-minded" countries can tip the balance in domestic decisio making processes. For other countries, international expectations and images remain influential. In the case of France and the UK, for instance, the benefits of displaying leadership on global issues seem to exert a significant pull toward activism in the Security Council, where their status as great powers with a claim on a veto is seen by some as questionable.
Moreover, differences in power are reflected in the multilateral flavour of a country's definition of national interests. Middle powers, for example, have modest leverage in foreign policy, resulting from a rule-bound multilateral system, but they have more than they would in one based purely on power. From this perspective, the traditional support for UN undertakings by Nordic countries, Canada, Australia, and New Zealand are logical and, in fact, self-interested. What many see as Washington's indifference or even hostility to multilateralism is also a reflection of power. The obsession with a definition of national interests that is circumscribed by a defence of the continental US and stable economic relations with allies is really only possible for such a dominant military and economic state.
The foreign policy strategies, priorities, and capacities of individual countries are key determinants in decisions by individual governments to participate in robust military missions. Humanitarian intervention is not an endeavour in which one size fits all. National political cultures matter, and the rationale for an intervention may need to be tailored to specific countries at particular historical junctures. Viewed in this optic, the unraveling of states and the need for outside intervention in such areas as the Balkans and Central Africa could take on a different perspective in Washington or Beijing, if the assumption is made that it is in no one's interest to have vacuums in state authority. Attitudes vary about sources of legitimacy, the use of force or economic coercion, sovereignty, and international law and organization, not to mention the implications of existing asymmetries in national power and wealth.
National interests are often thought of as fixed or given; they are viewed as simply a product of geographic, political, and military circumstances. In fact, national interests are based on particular perceptions and strategic calculations. Consequently, they are often subject to change, sometimes radical change.
The dynamic elements in the content of "national interest" offer the possibility of building a forward-looking message, one that aims to build a foundation of support for future efforts, not just for the crisis of the day.5 Those who determine the politics of humanitarian responses are the leaders of states and state-like authorities. They act on the basis of calculations of political interests. These are anything except fixed and unchanging, as the 1990s amply demonstrated. Shaping calculations of interest requires conscious engagement in political processes, because the construction and redefinition of interest are products of learning that should take place after each humanitarian crisis.
The previous section examined several generic factors that condition the likely willingness of countries to participate in international military operations. The task now is to explore in more detail two related dimensions of national decision making processes that affect specific undertakings for particular countries. First, there are a range of additional actors that influence government decisions, some intentionally (for example, diaspora and nongovernmental organizations [NGOs]) and others inadvertently (the media). Second, particular forms and structures of government affect the relative influence of these other actors. They are also important in their own right, as they determine the relative ease with which troops can be committed.
Occasionally a distant event is so horrific and generates sufficient NGO and media attention as to elicit a broad public reaction, even calling for concerted and urgent action. If so, the event becomes a factor in domestic politics. It is sometimes suggested, for instance, that such empathetic humanitarian responses, spurred by the so-called CNN or BBC effect, could help explain the earlier Bush administration's decisions to intervene militarily in northern Iraq in April 1991 and in Somalia in December 1992. Whatever its impact in these cases, the media evidently could not elicit action to counter the subsequent genocide in Rwanda, partly as a result of its inaccurate depiction of the challenges involved in halting what it characterized as an intractable intertribal conflict.
In this context, state decisions about engagement often juxtapose potentially contradictory impulses from the domestic political arena. Although one can overestimate the media's impact, there is no question that real time transmission of images of suffering has on occasion created domestic pressure to act.6 The effects are most likely to be significant when governments are slow to react and indecisive with regard to a humanitarian crisis (that is, where the strategic imperative is weak). By focusing on human suffering, media attention tends to divert publics and policy makers from hard diplomatic and military decisions. Interviews with officials suggest that such pressure can be almost irresistible. In particular, time pressures sometimes push policy makers to become involved before serious analysis and planning occur. This was evident, for example, in the aborted Canadian-led multinational force initiative in eastern Zaire in 1996. Policy planners were told of the decision to deploy before any serious assessment had taken place of the problem and Canada's capacity to deal with it.7
Sometimes, pressure from particular domestic interest groups may help to persuade an ambivalent government to act despite substantial misgivings. The urgings of the US Con-gressional Black Caucus, TransAfrica (led by Randall Robinson), and many citizens in politically pivotal Florida, for example, may have finally convinced the Clinton administration to intervene in Haiti in September 1994. Similarly, it seems pressure from the Tamil population in southern India encouraged action in the Jaffna Peninsula in 1987. In other cases, however, the impact of such pressure offsets the lobbying of another group. Within the US and Canada, for example, members of the Albanian diaspora tend to push in one policy direction for Kosovo, while the Serbian one pushes in the opposite.
NGOs are significant advocates for cross-border humanitarian action, including in some cases military intervention. It is difficult to draw causal arrows, but most politicians and analysts acknowledge the importance of such voices for changes in government policy. A clear example was the call of a number of NGOs, but particularly Médecins sans Frontières, for military intervention into eastern Zaire in the aftermath of the Rwandan genocide. Another striking example of such influence was the case cited earlier in which International Committee of the Red Cross President Cornelio Sommaruga began lobbying in December 1991 and January 1992 with the outgoing and incoming Secretaries-General to move robust action in Somalia onto the international radar screen. Later in 1992, the Washington-based consortium of US NGOs, Inter-Action, organized a lobbying session with President Bush to urge military intervention in the Horn of Africa.
NGOs are relatively dynamic and flexible, and they are able to bring an incipient crisis to the attention of the public, media, and officialdom. Yet, they do have their limitations as advocates for humanitarian intervention. Government representatives, especially from developing countries, often question the status of NGOs with which they disagree, asking just whom and what they represent. Consequently, the drive to widen NGO participation in the UN has stalled, or at least slowed down, in recent years.
Furthermore, NGOs often lack policy making experience and are frequently divided over which precise policy course is optimal. They may also be skittish about the cynical world of politics or about the employment of military and economic coercion, steps that could alleviate or exacerbate humanitarian suffering but that smack of great-power dominance of weaker countries. Western NGOs, for instance, were as divided about whether and how to use military force in Kosovo as they had been in Somalia. These points of difference or ambivalence give policy makers considerable freedom of action, as NGOs generally are more successful at getting an issue moved up the ladder of priorities than at compelling a specific course of action once the problem is being addressed.8
Influence varies with the nature and structure of a particular society and a particular elected government. And, as mentioned at the outset, little in-depth research has been undertaken for most countries on the dynamics of influence regarding humanitarian intervention. The prime targets for pressure from civil society may vary from country to country. Nongovernmental actors are accorded greater latitude in the West than in China, Russia, and most developing countries.9
In addition to the importance of political culture discussed above, traditions, patterns, and structures of governance also affect the prospects for the commitment of troops. It has been argued that in traditional troop-contributing countries for UN peacekeeping operations, national cultures may be understood as permissive, rather than causal. As such, pressure to commit troops comes from the long-established organizational culture in foreign-ministry bureaucracies.10 This pattern, however, might not hold in cases of Chapter VII enforcement missions or other high-risk operations with the possibility of substantial casualties.
Many of the key factors in national decision making are country specific. In France, the office of the president is reputed to hold considerable sway over a number of aspects of foreign policy, including the pursuit of French interests in its former African colonies.11 In the UK, there would appear to be a recurrent clash between two traditions: automatic support for multilateral initiatives and Parliament's taste for vibrant debate. The result seems to be a relatively consistent set of policy outcomes, without Paris's centralized decision-making process. Given the public caution and constitutional constraints that still hold in Japan and that have only recently been eased in Germany, it is inconceivable that either country would contemplate a significant role in a humanitarian intervention without serious parliamentary deliberations and public debate. In the US, the executive and legislative branches often hold quite different and sometimes contradictory views.12 Few questions bring out the interbranch and interparty divisions, and even splits, within the major parties more vividly than those involving the deployment of US military forces. Washington's diplomats have limited flexibility and are necessarily cautious about playing the kind of leadership role and taking the sorts of initiatives that would otherwise be expected from a dominant power.
In some cases, changes in government can affect, and often decrease, support for military interventions. Although it has yet to be borne out in practice, the incoming Bush administration was explicit in its desire to reduce US military commitments in the Balkans. In some cases the effects of such changes are counterintuitive. When Nigeria was a military dictatorship, it was more easily able to support military interventions in Liberia and Sierra Leone than after it returned to democratic rule. With the election of Olusegun Obasanjo, the cost of maintaining olive-green-helmeted troops in Sierra Leone became unsustainable.
Useful indicators of whether a state will participate in a particular humanitarian intervention seem to be proximity, political culture, and national interest. These conclusions help to define the proverbial bottom-line, or primary policy challenge: What can be done so that countries are more likely to participate in humanitarian interventions that are widely considered to be legitimate and justified?
Obstacles relating to proximity and capacity cannot be overcome very quickly. In some countries - such as China, Japan, and much of Latin America - the political culture against intervention is so deeply engrained that it would take more than a generation to change it. In other countries, however, leanings in one direction or the other may evolve more quickly or from case to case. The most potentially malleable factor would appear to be how national interest and identity are defined or redefined.
Unpacking the notion of political will demonstrates the significance, often overlooked, of domestic politics and national interests. But agreement in capitals is usually only one of the necessary components for effective multilateral intervention. Domestic will alone is inadequate to ensure protection for individuals from the ethnic cleansing in Croatia, widespread killings in Cambodia, dismemberments in Sierra Leone, or massive starvation in Sudan.
What happens during intergovernmental deliberations, and the statements and proposals of the UN Secretary-General and his organization, matter in capitals. For all but a few of the most powerful or recalcitrant countries, multilateral diplomacy has an impact on domestic decision making and thus on potential support for international initiatives. Furthermore, cooperation between and among states and other international actors is a necessary part of the chain linking political decisions to the actual deployment of military forces.
International will, then, is more than just the sum of attitudes and policies of individual countries. It also consists of leadership and coordination to convert material political commitments into effective international action on the ground. While broader political support and legitimacy are always helpful, they are vital where the interests of Western powers or regional hegemonic powers are not immediately threatened. Two international dimensions are crucial: multilateral leadership and coalition building.
Though it is easy to overstate the importance of intergovernmental institutions in deciding when, where, and how to intervene, these bodies do play a critical role in facilitating the transition from domestic decision making to international action. An obvious starting point when looking for multilateral leadership is the UN Secretary-General and senior officials in the Secretariat. Although provisions in the Charter such as Article 99 are often discussed, it is the Secretary-General's international profile with governments and the media, as well as his routine activities and interactions with the Security Council, that give him a unique opportunity to mobilize international support. Furthermore, the Secretariat, particularly through reports and recommendations to the Security Council, shapes deliberations and may help determine the range of options considered.
Take, for example, the importance of leadership from the Secretary-General. Where it exists, the impact can be considerable. Dag Hammarskjöld's working with Canadian Foreign Minister Lester B. Pearson helped invent peacekeeping in the Suez Crisis of 1956. On the basis of Charter Article 99, he also forced the Security Council to consider the violence in the Congo in 1960. Similarly, Javier Pérez de Cuéllar's diligence helped bring an end to El Salvador's civil war in 1991-1992. These and other illustrations demonstrate that members of the international civil service are actors with some independent scope, and probably more than is commonly assumed.
By the same token, the failure to respond to the genocide in Rwanda in 1994 illustrates the importance of leadership within the UN and the effective functioning of the Secretariat. As the Independent Inquiry on Rwanda reiterates, blame for the failure to respond to the genocide in Rwanda is widespread. Yet, the report goes on to specifically highlight the shortcomings of the Secretary-General and the Secretariat:
| The Independent Inquiry finds that the response of the United Nations before and during the 1994 genocide in Rwanda failed in a number of fundamental respects. The responsibility for the failings of the United Nations to prevent and stop the genocide in Rwanda lies with a number of different actors, in particular the Secretary-General, the Secretariat, the Security Council, UNAMIR [UN Assistance Mission in Rwanda] and the broader membership of the United Nations.13 |
Criticisms of the UN's chief executive officer and his senior team included their "mistaken analysis which underpinned the recommendations to the Council, and for recommending that the mission be composed of fewer troops than the field mission had considered necessary"; their improper handling of the telegram of January 11, 1994, from the Force Commander reporting on the advanced state of planning for a premeditated slaughter of the Tutsi population; the Department of Peacekeeping Operations, unwillingness to argue forcefully for a more robust mandate and an increase in troop strength in the aftermath of the Belgian withdrawal; and their persistence in viewing the situation as a civil war, including their unwillingness until the end of April to use the term "genocide."
In contrast to the events in the spring of 1994, the Secretary-General and senior officials have in recent years been willing to take on controversial issues that surround humanitarian intervention. An obvious example is the hard-hitting self-analyses in investigations into Rwanda, Srebrenica, and UN peace operations. In fact, in response to the Rwanda report, Annan publicly stated that "[o]n behalf of the United Nations, I acknowledge this failure and express my deep remorse." He went on to say that,
| Both Reports - my own on Srebrenica, and that of the independent Inquiry on Rwanda - reflect a profound determination to present the truth about these calamities. Of all my aims as Secretary-General, there is none to which I feel more deeply committed than that of enabling the United Nations never again to fail in protecting a civilian population from genocide or mass slaughter.14 |
The call by the Secretary-General at the General Assembly's opening session in September 1999 further illustrates the significance of multilateral leadership in terms of ideas and norms. The debate on humanitarian intervention that has ensued, and indeed the launch of the International Commission on Intervention and State Sovereignty, would have been unlikely without Annan's prompting.
Leadership within the Security Council can also make the difference between impotent rhetoric and effective responses. One example is the invigoration of the Angola Sanctions Committee largely through the efforts of Robert Fowler, Canadian Permanent Representative to the UN. A sanctions committee on Angola was established by Resolution 864 (1994) on September 15, 1994, to supervise the imposition of an oil and arms embargo on the rebel group the Union for the Total Independence of Angola. These sanctions were subsequently extended on July 1, 1998, to include an embargo on unofficial diamonds. Despite their imposition, however, it was clear that "UNITA [Union for the Total Independence of Angola] was still able to procure what it needed for its war machine, and sell its diamonds. UNITA officials still traveled with little restriction, and UNITA continued to be active in international capitals through 'unofficial' offices and representatives."15
In January 1999, Fowler launched a series of new initiatives designed to improve their effectiveness. And that summer, following his extensive series of visits to Africa and Europe, the Security Council debated 19 concrete recommendations on what could be done to enhance the effectiveness of the sanctions regime.16 According to a report by the Angola Peace Monitor, Fowler personally "injected new energy into the embargoes, through early recommendations about how they might be made to work better and by investigative visits to Southern Africa as well as the diamond dealing and arms trading capitals of Europe."17 The launch of a series of expert panels ensured follow-up within the Security Council, while the overall initiative created a precedent for exploring the economic foundations of ongoing conflicts and paved the way for similar reports on Sierra Leone and the Congo.18 The initiative also gave impetus to a subsequent international effort to control "conflict diamonds."
A similar example, though ultimately less successful, was the effort of Nigeria's Permanent Representative to the UN, Ibrahim Gambari, during the Rwanda crisis. Following the outbreak of genocide in early April 1994, he consistently and vocally advocated a strengthening of the mandate of the UN Assistance Mission in Rwanda (UNAMIR) in Rwanda and an increase in troop numbers. In mid-April, he presented a draft resolution to the Security Council on behalf of the nonaligned caucus, and one week later met with the Secretary-General in an effort to counter moves in the Security Council to withdraw UNAMIR completely. During the following month, as president of the Council, he argued that international credibility was at risk. And he recommended that the Council ask the Secretary-General to prepare the contingency plans for a robust intervention.
The need for multilateral leadership is clearly not limited to the various organs of the UN. Effective action also requires the active engagement of regional and subregional bodies, other multilateral organizations, and even individuals. For example, during the early part of the decade in the Balkans, the prospects for peace and the safety of civilians rested in the hands of various entities and leaders, including the Special Representative of the Secretary-General Yasushi Akashi, the peace envoys Cyrus Vance and David Owen, and the members of the "Contact Group." Later, it was the G-8 political directors who first set out the principles for ending the war over Kosovo, and G-8 foreign ministers in Bonn and Cologne who negotiated the Security Council resolution that ended the war.
A subset of the larger question of multilateral leadership that deserves special attention is the construction and maintenance of multinational coalitions. At the start of the 1990s, particularly with the publication of Boutros Boutros-Ghali's An Agenda for Peace, the UN initially seemed on the brink of playing an important and direct role in the mobilization and deployment of military forces. Yet, in light of the experiences in Bosnia, Somalia, and Rwanda, the emphasis on peace enforcement was greatly reduced in the 1995 Supplement to An Agenda for Peace. This trend was further confirmed when the Report of the Panel on United Nations Peace Operations (in 2000) concluded that the "consent of the local parties, impartiality and the use of force only in self-defence should remain the bedrock principles of peacekeeping."19 In cases of military intervention, therefore, the UN's role will seemingly be limited to authorizing the use of deadly force. The actual mobilization and deployment of such power will normally be conducted by coalitions of the willing, even if blue helmets occasionally have important responsibilities for some aspects of peace enforcement (for example, at present in Sierra Leone and East Timor).
During the 1990s most interventions were undertaken by like-minded coalitions. A broad but potentially fragile coalition was brought together by the US in response to the Iraqi invasion of Kuwait. South Africa mobilized support from the Southern African Development Community to intervene in Lesotho. Nigeria led the coalition within the Economic Community of West African States (ECOWAS) in both Liberia and Sierra Leone, while Francophone members took the lead in Guinea-Bissau. And an ad hoc grouping of states intervened in the Central African Republic. In each case common problems and challenges were faced: mobilizing troops, securing resources, agreeing on legal and administrative arrangements, and maintaining internal solidarity. Yet, despite the importance of coalition building to the politics of the 1990s, there has been relatively little in-depth research on how coalitions develop and how they function under duress. Other than memoirs and anecdotes, there is little to guide prospective coalition-builders.
One case that has been examined in some detail was the aborted mission to Zaire in late 1996. In response to the refugee crisis in eastern Zaire, Security Council Resolution 1080 of November 15, 1996, authorized a Multinational Force (MNF), under Canadian command, to ensure the effective provision of aid to refugees and local populations and the voluntary and orderly repatriation of the refugees. The coalition was first created by calls from the Canadian prime minister to his counterparts. It was subsequently managed by a steering group bringing troop-contributing countries, humanitarian agencies, and major financial supporters into the decision making process. Ultimately, Canada was the only country to actually commit troops to the mission, and changing circumstances on the ground led to the mission's being cancelled by the end of the year.
In the spring of the following year, the Canadian government began a consultative process seeking ways to improve the capacity of the international community to prepare and manage military interventions in humanitarian crises. One outcome was a lessons-learned paper that focused on the challenges of managing an ad hoc multinational coalition.20 The study concluded that the improvisation required to develop a coalition wasted valuable time and energy and that generic procedures and decision making models should be formalized. It also suggested that the inclusive and consensus-based decision making model based on a large steering group was unwieldy and ultimately impractical. Although the interests of potential troop-contributing countries should be respected, overarching political direction should be decided by a much smaller group focused exclusively on meeting the primary objectives of a mission.
A further conclusion of this analysis was that so-called middle powers are well suited to lead an MNF, because they are more politically acceptable in the developing world, but that their modest political and military status simultaneously limits their ability to mount and direct such military interventions effectively. For an operation as logistically complex as the one in Zaire, the commitment of US ground troops was a prerequisite for most potential troop contributors. This reality led the authors to propose that like-minded countries should consider pooling resources and coordinating the procurement of logistical capacity to reduce dependence on any one state.
The Zaire mission faced more formidable coalition building challenges than others in the 1990s. The great powers were either unwilling to lead or were, as in the case of France, unacceptable to others. And the coalition lacked preexisting structures and procedures of a regional organization or a military alliance. These challenges were also faced by Australia in leading the multinational force to East Timor, but geographic proximity made the operation more feasible.
Many commentators point to the obvious shortcomings when major or former colonial powers are involved, which is one reason why the permanent members of the Security Council were shunned for traditional UN peacekeeping operations. At the same time, operational challenges are greatly reduced when the great powers are engaged. The US, and in many cases Britain and France, have the military capacity to undertake military interventions single-handedly, or at least play a prominent leadership role. In these cases, the coalition building challenge is largely political: maintaining solidarity among members during the course of the intervention, with occasional financial burden-sharing. Prominent examples where the great powers were fully engaged include the US-led coalition in the Gulf War and NATO in Kosovo.
In the case of the Gulf War, the coalition was created through intense diplomatic lobbying by the US, with strong support from the UK. This lobbying included an 11-day, nine-country trip by US Secretary of State James Baker in September 1990 to build support. The coalition of 28 countries was constructed from the outset to meet three overarching objectives: to demonstrate solid support in the Arab world (for example, Saudi Arabia, Egypt, and Syria), to ensure access to adjacent territory for staging military operations (for example, Turkey and Saudi Arabia), and to spread the financial burden among wealthier countries (for example, Japan, Germany, and Saudi Arabia). Israel was excluded from the outset, as its participation was incompatible with strong support from Arab countries. And intense pressure was exerted during the Scud missile strikes to avoid retaliatory measures by Israel that might have split the coalition.
In Kosovo, the coalition was limited to NATO members. Hence, the mechanisms for decision making and operational modes were well established, and in fact predetermined. The real challenge was securing and maintaining commitments among political leaders in NATO countries. Once again, Washington and London played leading roles in the process, seeking to ensure military commitments, political support, and financial resources. The challenges were greatest in southern Europe - ironically, those countries that had the most to lose from the potential spillover from the conflict. In addition, country-specific factors made the process more difficult. Greece was concerned about the implications that the Kosovo precedent might have for a future conflict in Cyprus and the risk of exacerbating ethnic tensions in neighbouring Macedonia. In Italy, strong economic relations with Yugoslavia and the strength of the Communist Party in the Italian parliamentary coalition contributed to the government's hesitations. There were even difficulties with one of the central members of the alliance, Germany, in terms of the constitutional prohibition on waging war and the strength of the traditionally pacifist Green Party in the ruling coalition. Finally, there was concern among all NATO leaders that mounting civilian casualties, and the extension of the air campaign to Belgrade, might undermine the Western public's support.
Given the disproportionate contributions among members, even where interventions are undertaken by alliances and regional organizations, they remain coalitions of the willing and able. For instance, the contributions among NATO countries to the war in Kosovo were very uneven, with US warplanes flying 85 percent of the sorties. Imbalances were perhaps even more evident in the case of the intervention in Liberia.21 ECOWAS authorized the intervention in July 1990, but at the outset only 5 of the 16 member countries - the Gambia, Ghana, Guinea, Nigeria, and Sierra Leone - committed troops.22 Nigeria dominated the operation, contributing the bulk of the troops over time and as much as 90 percent at times. A Standing Mediation Committee - including the Gambia, Ghana, Mali, Nigeria, and Togo - was established to manage the decision making process. It was subsequently supported in 1991 by the Committee of Five (Côte d'Ivoire, Ghana, Guinea, Liberia, Nigeria), the Gambia, Guineau-Bissau, Senegal, and Togo.
The first Force Commander was a Ghanaian, and overall control rested with the Chair of ECOWAS, a position that revolved annually. In fact, the maintenance of the coalition over more than six years was based on effective Nigerian diplomacy. From the outset, two ECOWAS members - Burkina Faso and Côte d'Ivoire - strongly opposed the intervention. In fact, because of belligerents propelling the conflict in neighbouring Liberia, they had actively worked to keep Liberia off the Security Council's agenda. Yet, by 1992, both had come to accept the need for a political settlement and were included in ECOWAS's expanded Committee of Nine. And although the coalition was heavily anglophone at the outset, Nigeria consistently pressed for greater francophone involvement. In 1991, both Senegal and Gabon agreed to provide troops; and the following year, Senegal was also included in the Committee of Nine. Efforts were also made to broaden the coalition beyond West Africa. Troops from Tanzania and Uganda joined in late 1993, though earlier commitments from Zimbabwe and Egypt never materialized.
In retrospect, failure to respond to humanitarian crises is usually explained by inadequacies in the so-called international community. More often than not, the lack of political will is deemed the determining factor and is once again bemoaned. Yet, such conclusions explain little. If the "international community" is responsible, then no one really is. In the end, the question of political will, whether domestic or international, comes down to choices and decisions by individuals. To take just one case, the responsibility for not having responded to the April 1994 genocide in the African Great Lakes lies with particular governments and ultimately individual leaders who could have made a difference but chose not to.
The 1990s were a revolutionary decade for humanitarian action. At one time or another, crises on four different continents dominated the international agenda. The Security Council authorized more than a dozen Chapter VII operations in response to conscience-shocking human catastrophes; regional organizations were seized with these issues and responded; militaries and humanitarian agencies adopted new policies and practices.
For all the despair, it was also a decade in which the lives of literally hundreds of thousands were saved. Collective efforts assisted and protected human beings caught in the throes of deadly conflicts.
Political and institutional leaders now accept a moral responsibility for civilians whose lives are threatened, wherever they may be located. The obstacles to making good on this responsibility do not appear insurmountable. The Security Council is no longer fundamentally split. In the face of a veto, there are other multilateral measures, especially through regional organizations, that can provide legitimacy. After a decade of experiments, the operational challenges are apparent. A litany of reports have set out the changes necessary, and it is now a question of implementation.
In this new environment, the onus is truly on leadership. Responsibilities are allocated in the centres of power - whether in the capitals of major powers, the headquarters of international organizations, or wider stakeholder institutions. At the same time, military contingents, humanitarian agencies, and individuals are accountable in the field for decisions - those made and those avoided. Macro-level decisions are operationalized through a myriad of micro-level decisions and the actions that follow. When it comes to mobilizing the will to act, people matter.
Perversely, while the protection of civilians at risk has gained public attention in recent years, confidence in the ability of international law and the UN to deal with them has ebbed. The leadership challenge is to mobilize domestic and international support as a matter of basic human decency and hard-headed realism. At the beginning of the 21st century, there appear to be a growing number of parliamentarians and pundits, scholars and practitioners, citizens and humanitarians of all stripes who believe it possible and necessary to make good on the obligation to ensure protection for civilians threatened by war's worst horrors - ethnic cleansing, slaughter, and genocide.